Editore"s Note
Tilting at Windmills

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February 25, 2009

IS IT MULTIPLE CHOICE AFTER ALL?.... Yesterday, Sen. Chuck Schumer (D-N.Y.) insisted governors don't really have a choice when it comes to the stimulus package. As far as the law is concerned, this is an all-or-nothing proposition.

This sounded great. The problem is, his argument may have been incorrect.

In a letter to Office of Management and Budget Director Peter Orszag. Schumer said, "Section 1607(a) of the economic recovery legislation provides that the Governor of each state must certify a request for stimulus funds before any money can flow. No language in this provision, however, permits the governor to selectively adopt some components of the bill while rejecting others. To allow such picking and choosing would, in effect, empower the governors with a line-item veto authority that President Obama himself did not possess at the time he signed the legislation."

My friend Sarabeth, however, alerted me to a piece from Donny Shaw, who read the relevant portion of the bill, and noticed a competing detail that Schumer overlooked.

[H]ere's Section 1607 of the stimulus bill:

SEC. 1607. (a) Certification by Governor - Not later than 45 days after the date of enactment of this Act, for funds provided to any State or agency thereof, the Governor of the State shall certify that: (1) the State will request and use funds provided by this Act; and (2) the funds will be used to create jobs and promote economic growth.

(b) Acceptance by State Legislature - If funds provided to any State in any division of this Act are not accepted for use by the Governor, then acceptance by the State legislature, by means of the adoption of a concurrent resolution, shall be sufficient to provide funding to such State.

That language about funds to a state "in any division" suggests the law does allow for governors to take (and, presumably, reject) portions of the funding, in which case Schumer's mistaken.

To be sure, states should take federal stimulus aid. The point here, though, is whether Schumer's argument is right or wrong.

Anyone have a different read on this?

Update: Jack Balkin tackled this last week, and has a very helpful post on the subject.

Steve Benen 4:10 PM Permalink | Trackbacks | Comments (19)

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I think Schumer's part of the wall street problem. And a tool in general.

Posted by: Rick on February 25, 2009 at 4:11 PM | PERMALINK

I can't say either way what that means. I'm neither a lawyer nor a government bureaucrat. I suppose it depends on what "in any division" actually means. Does that mean that the different types of aid/spending can be broken up? Or does it refer to the amount apportioned to each individual state?

Posted by: Shade Tail on February 25, 2009 at 4:15 PM | PERMALINK

Is there a reason we're calling it multiple choice? It's multiple choice: yes or no. That's multiple choice.

But is it la carte?

I know it's trivial, but it's driving me crazy.

Posted by: Jesse on February 25, 2009 at 4:17 PM | PERMALINK

What do we care if the Republican hard hearts running Louisiana and South Carolina want to pass on help for their unemployed then I think they should be allowed to pass. After all Republican ideology is more important than any number of hardworking people who allowed themselves to be laid off. After all those poor laid off people deserve to go hungry.

Posted by: Ron Byers on February 25, 2009 at 4:18 PM | PERMALINK

I was under the impression that a Governor could refuse certain funds, but then those funds would fall to the legislature to distribute.

Posted by: JWK on February 25, 2009 at 4:20 PM | PERMALINK

What JWK said. I don't think governors can opt their states out of any of the stimulus. Any money that they don't disburse goes to the legislatures. If haste weren't necessary in this crisis situation, it wouldn't make sense to have the governors at the front end of the process at all.

So a governor who "refuses" unemployment insurance funding is really just saying that the money will take longer to get to people, because it will have to go through a legislative process which is slower than executive decision.

Posted by: 1st Paradox on February 25, 2009 at 4:24 PM | PERMALINK

I'm not a lawyer, but I think you could read it the other way too. If the governor refuses any of the funds provided in parts of the act, that doesn't necessarily mean he can accept the funds in other parts of the act, because it doesn't say that. It just means the legislature can overide the governor.

Posted by: James G on February 25, 2009 at 4:29 PM | PERMALINK

I'm anxiously awaiting cmdicely's take on it, but from a layperson's perspective, I think it's saying that the Governor may not like parts of the package, but can be overridden by the state legislature, and the whole package will be administered.

...shall be sufficient to provide funding to such State.

I think this clause is the key, because of what it's missing. If it said 'to provide such funding,' or 'to provide funding for this division,' then it would be clear.

As it stands, 'funding' in that clause is all encompassing and, to me, indicative of acceptance of the entire package.

Posted by: doubtful on February 25, 2009 at 4:40 PM | PERMALINK

I'm not a lawyer, but I read the "in any division" clause as meaning that if funds mentioned in any part of this act are not accepted by any governor, then the state legislatures may override that decision.

Posted by: Paul on February 25, 2009 at 4:47 PM | PERMALINK

I'm with Paul (and I'm not a lawyer, either; nor have I recently stayed at a Holiday Inn Express).

It's plain enough that the phrase "provided... in any division of this Act" modify the word "Funds," and that the phrase does not describe the manner in which those "Funds" will be provided to the States.

After all, wasn't the whole point of inserting this language to allow state legislatures to overrule a recalcitrant Governor? Then let's not pretend otherwise...

Sarabeth is leading you astray...

Posted by: Jabari on February 25, 2009 at 4:58 PM | PERMALINK

Here's a different read: State governments can take or reject such federal funds as they choose.

And here's a question: If the stimulus bill was all about "providing a stimulus," why did the congress include provisions like this, provisions requiring policy choices some states do not want to make? For the record, Joan Walsh reports that at least two Democratic governors (Tennessee, Oklahoma) are also rejecting this particular money.

Final point: Chuck Schumer lacks the first earthly clue. Great idea! Start a fight in which The Big Domineering Federal Government forces policy changes on states in the guise of a stimulus package! You will have given the GOP a political lifeline at a very bad time. You will have affirmed every talking-point the GOP has been pushing.

Is there any way to get dumber and breathe? If so, we'll probably find it.

Posted by: bob somerby on February 25, 2009 at 5:03 PM | PERMALINK

Not a lawyer disclaimer. Subsection (a) doesn't use the ' in any division' phrase, so is certification an all or nothing process?

Subsection (b) acceptance allows for the legislature to accept even if the gov doesn't, doesn't it??

So line item refusal reqs legislative compliance. Something that's not likely to happen.

Posted by: Michael7843853 on February 25, 2009 at 5:44 PM | PERMALINK

Why argue about it. Take the money they don't use and give it to another state. Its not like there is a shortage of things that can be done with it.

Posted by: aline on February 25, 2009 at 6:48 PM | PERMALINK

"...if funds provided to any state in any division of this act..."
If the word "division" refers to those sections of the stimulus bill that itemize the amount of money and what it is provided for (and I am presuming it does), then any governor can reject, say, increased Federal monies for unemployment insurance and that rejection would not affect that state's receiving money from another portion of the stimulus bill for different purposes.
And the state legislature would still be able to get the funding for the increases in unemployment benefits by passing a concurrent resolution requesting such funds - once the occupant of the Governor's Mansion has finished playing to the peanut gallery, of course.

Posted by: Doug on February 25, 2009 at 7:59 PM | PERMALINK

I don't read it that way. By funds provided to "any state in any division..." I read that it means 'where it applies to a state' and not to a federal office...and not 'each division individually' that a state may choose. In other words all that applies to a state, every division of the package that applies to a state, and if the governor rejects it, the legislature may override his rejection and accept the package that applies to the state. The federal agencies in that state will still use the federal part of the package. Make sense?

Posted by: bjobotts on February 25, 2009 at 10:58 PM | PERMALINK

btw...these republican governors are willing to let the people of their states suffer and that will not be forgotten...but the dems are more concerned about getting relief to the people regardless of politics.

"Right America Feeling Wronged" should indicate what the right has been cultivating rather than correcting or educating meaning they would let babies freeze and starve just to feel superior or regain power. Republicans need to be eliminated from any place in government for they only crave a Jesus/Caesar run Rome.

Posted by: bjobotts on February 25, 2009 at 11:08 PM | PERMALINK

"...Republicans will work with the White House if the president is ready to embrace their ideas about Social Security...."

Exactly how Glenn Greenwald described the republican's idea of bipartisanship...embracing republican policies. They really don't know how to be bipartisan. The majority has voted them out the past 2 elections because we don't like or want their policies...anymore...they are disastrous failures.

Posted by: bjobtts on February 25, 2009 at 11:29 PM | PERMALINK

Schumer's argument right or wrong: It may not be enforceable, but it is certainly not wrong!

Posted by: capalistpig on February 26, 2009 at 9:32 AM | PERMALINK

I've nev er been particularly happy with teh Federal Gov't's tendencies to pass federal law by taxing everyone and only giving it to states that obey their will.

Federal highway dollars only if state's change their driving, alcohol, seat belt, motorcycle, etc. laws to match their decisions.

Education funding only if they perform pointless No Child Left Behind standardized tests that each state makes for itself to decide what "proficient" means.

It defeats the model of 50 states and one nation to a great degree. This was especially important pre-2006. I'd rather the Dems tone down any heavy handedness. Allow idiocy to occur. 1 in a million might prove to be a terrific idea we can learn from.

Posted by: toowearyforoutrage on February 26, 2009 at 4:04 PM | PERMALINK



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