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Is Quinn’s AV constitutional?

Wednesday, Aug 1, 2012

* Gov. Pat Quinn was asked by reporters at least twice during a press conference yesterday about whether he actually has the power to use an amendatory veto to drastically change a piece of legislation, as Quinn did yesterday with his assault weapons ban AV. Here’s the first reporter question…

Do you concede there are any limits on your AV power?

He didn’t.

* Second question…

Where is there in the Constitution that says the governor can add such substantive language on a different topic to a bill?

Quinn pointed to unnamed Illinois Supreme Court opinions and voter action.

Press conference raw audio…

* OK, let’s go to the Illinois Constitution

The Governor may return a bill together with specific recommendations for change to the house in which it originated.

And that’s it.

* The Illinois Supreme Court has ruled that the governor’s AV powers go beyond just correcting errors or making minor changes. From People ex rel Klingert v. Howlett

Our examination of the records of the [Illinois Constitutional] Convention shows that the following terms were used to describe the kinds of “specific recommendations for change” that were contemplated: “corrections;” “precise corrections;” “technical flaws;” “simple deletions;” “to clean up the language.” In response to the following question put by Delegate Netsch, however, “Then was it the Committee’s thought that the conditional veto would be available only to correct technical errors?” a committee member answered, “No, Ma’am.”

* However, in the same case the Supremes also ruled on another matter...

The Illinois Supreme Court was confronted with Gov. Richard B. Ogilvie’s amendatory veto which amended the title of the bill and substituted a reworded proposal for all of the text after the enacting clause, although reiterating verbatum much of the language of the bill as originally passed. The court was obviously troubled that the scope of the governor’s authority in the new Constitution was not clearly stated nor could it be found in the committee reports or debates.

The justices did not attempt to delineate the exact kinds of changes that would fall within the power of the governor, but merely stated that “[It can be said with certainty, however, that the] substitution of complete new bills, as attempted in the present case, is not authorized [by the Constitution].” [Emphasis added, and added text from the original opinion can be found here]

* Gov. Quinn’s amendatory veto language begins with this

* So, Gov. Quinn’s amendatory veto appears to go way beyond even what Gov. Ogilvie tried. The Court has been clear that while governors are part of the legislative process, they cannot erase an entire bill and substitute their own language. Ogilvie used much of the same text from the original bill in his new proposal and the Court still shot it down. Quinn didn’t even bother with that nicety. He just wiped out the underlying bill entirely and wrote his own, new bill.

It’s a moot point, of course. As I told you yesterday, there’s no way this AV is going anywhere. But this sure looks like a major constitutional overreach by Gov. Quinn.

* Related…

* Illinois governor wants ban on assault-style weapons, high-capacity magazines: Illinois Governor Pat Quinn Tuesday ventured into territory where most elected officials and politicians fear to tread: An outright ban on assault style weapons and high capacity magazines for all guns.

* Illinois governor wants ban on assault weapons

* Quinn faces uphill fight for assault weapons ban - Colorado theater massacre demands action, governor says

* Assault weapons idea a publicity stunt, area lawmakers say

* Topinka: Assault weapons ban would be ‘hard to enforce’

* Local lawmakers oppose gun ban

* Gun owners balk at assault weapons ban proposal

* Illinois gov. proposes state assault weapons ban

- Posted by Rich Miller        


37 Comments
  1. - western illinois - Wednesday, Aug 1, 12 @ 9:42 am:

    Why doesnt he just AV pension reform?It would be just as Constituational.


  2. - Michelle Flaherty - Wednesday, Aug 1, 12 @ 9:45 am:

    But I thought the governor had swore his devotion to the constitution. Didn’t he just say that in his special session orders?


  3. - Sunshine - Wednesday, Aug 1, 12 @ 9:48 am:

    Perhaps the longer he is in this position of power, the larger his head becomes, and the smaller his brain?


  4. - Esteban - Wednesday, Aug 1, 12 @ 9:51 am:

    How does one determine what is-or isn’t- an “assault weapon” and who will make that determination?


  5. - Kerfuffle - Wednesday, Aug 1, 12 @ 9:54 am:

    It is all about appearances. You can’t let a good crisis go to waste even if PQ’s solution to that crisis doesn’t pass constitutional muster.


  6. - Shore - Wednesday, Aug 1, 12 @ 9:54 am:

    If you’re aiming at suburban independents who aren’t pro gun with a stunt like this, you need to be able to convert because otherwise you come off looking like an incompetent goof and it backfires because one of the things suburban independents really value is competence and leaders who can get stuff done in a serious way that delivers solid results.


  7. - Anonymous - Wednesday, Aug 1, 12 @ 9:57 am:

    I refuse to believe that Gov. Quinn would do something with no chance of success because he wanted to have a one-shot publicity stunt.


  8. - Cincinnatus - Wednesday, Aug 1, 12 @ 10:02 am:

    Quinn is doing nothing more than following the recent trend of executive branch folks doing pretty much anything they want to, whether authorized by legislative initiative or not, and relying on the courts (or the people) to force these bureaucrats to follow the law. We are not only seeing our freedoms reduced by executive fiat, but costing countless dollars in litigation costs.


  9. - lake county democrat - Wednesday, Aug 1, 12 @ 10:03 am:

    I’m not endorsing this behavior and admit it’s a dicey area - if the Illinois Supreme Court reaffirmed it’s previous interpretation of the clause and Quinn kept doing it I’d definitely condemn it.


  10. - East Sider - Wednesday, Aug 1, 12 @ 10:03 am:

    This is a stunt to allow downstate democrat incumbents a chance to “lash out at liberal Chicago politicians.” I’m sure Dan Beiser and Bill Haine are already crafting so-called “legislative updates” (aka: political mailers by for at taxpayers’ expense) supporting 2nd Amendment rights and pandering to gun owners.


  11. - Small Town Liberal - Wednesday, Aug 1, 12 @ 10:10 am:

    Cinci - If you think executive action is a recent trend, you really need to brush up on your history.

    Also, the legislature never defined exactly what an AV could be used for, and I don’t agree that this goes way beyond Ogilvie’s AV. Both added language, both retained language.

    If you think it’s unconstitutional, take it to court. Otherwise, vote on it as is or override it. Is it really different than if it was simply vetoed?


  12. - OneMan - Wednesday, Aug 1, 12 @ 10:11 am:

    I refuse to believe that Gov. Quinn would do something with no chance of success because he wanted to have a one-shot publicity stunt.

    And I refuse to believe that NIU isn’t going to win a national football championship within the next 10 years. Doesn’t mean my thoughts are based in reality.


  13. - Kerfuffle - Wednesday, Aug 1, 12 @ 10:28 am:

    Small Town Liberal - “Also, the legislature never defined exactly what an AV could be used for”……The legislature didn’t define it because they couldn’t. It came out of the Constitutional Convention (and is now part of the IL Constitution).


  14. - Small Town Liberal - Wednesday, Aug 1, 12 @ 10:35 am:

    Kerfuffle - I’m no expert on such things, but I read the article Rich linked, and that was one of the two solutions recommended by the writer (an attorney who worked for Ogilvie apparently)


  15. - Dirty Red - Wednesday, Aug 1, 12 @ 10:38 am:

    OneMan ftw.

    This reminds me of Rod’s Rewrite to do Right campaign.


  16. - Rich Miller - Wednesday, Aug 1, 12 @ 10:39 am:

    ===The legislature didn’t define it because they couldn’t.===

    Actually, both chambers have defined what the governor’s AV powers are by rule. And this AV is a clear violation of those rules.


  17. - AC - Wednesday, Aug 1, 12 @ 10:41 am:

    If only he had such power over the state budget, he could have paid employees the raises he agreed to…


  18. - Anonymous - Wednesday, Aug 1, 12 @ 11:17 am:

    But didn’t those House and Senate “rules” get get ignored, or suspended, when the free rides for seniors was part of an AV penned by Blagojevich?


  19. - Been There - Wednesday, Aug 1, 12 @ 11:25 am:

    ===If you think it’s unconstitutional, take it to court.====
    There isn’t anything to take to court and there never will be anything to take to court. That’s Rich’s whole point. Unless this becomes law, which it won’t because the sponsor won’t move it or it won’t get out of the rules committee, there is nothing to take legal action on. All media hype.


  20. - Cincinnatus - Wednesday, Aug 1, 12 @ 11:28 am:

    One wonders if Dave Luechtefeld plans to let the underlying bill fail or if he is going to drive an override…


  21. - Todd - Wednesday, Aug 1, 12 @ 11:36 am:

    Been there– yes there is. And it is being looked at.

    Quinn issued the AV. In a couple days, the bill will have hit the 60 day mark defined by the constitution to act, I believe he has fulfilled that obligation by the AV to act and so if the AV goes beyond what is constitutionally acceptable, then the underlying bill becomes law. At least that is the theory that the lawyers are looking at right now. . .


  22. - Javorica - Wednesday, Aug 1, 12 @ 12:07 pm:

    Quinn at least has enough smarts to know that while this bill will never get through, it’s great publicity for him and Rahm with the democrats in the urban communities. On the contrary people who understand a bit more about the process know that he is still inept and the bill he gutted was drafted by pro gun legislators who won’t be happy Quinn used his questionable AV power to gut their bill. They likely just won’t let it out of committee or won’t call it for a vote. Very Franks-esk in PR.


  23. - Yellow Dog Democrat - Wednesday, Aug 1, 12 @ 12:10 pm:

    Oy. Its been a long time since I looked at the rules.

    I don’t believe the AV can be ignored, although it can be dismissed by a ruling of the chair which is subject to roll call.

    Unlike Rich, I’m not completely ruling out an override.

    There are lots of downstate Democrats who are happy to vote against an assault weapons ban and distance themselves from the governor, and lots of suburban Republicans that Democrats would be only too happy to see on the record as opposing an assault weapons ban.


  24. - Rich Miller - Wednesday, Aug 1, 12 @ 12:12 pm:

    ===Unlike Rich, I’m not completely ruling out an override.===

    I’m not, either. All I’m saying is that no matter what happens this AV is deader than a rock on a stump.


  25. - Yellow Dog Democrat - Wednesday, Aug 1, 12 @ 12:16 pm:

    My bad, Rich. Unlike the bill’s sponsor, I’m not completely ruling out an override.

    From CBS News:

    Luechtefeld’s measure would have allowed Illinois residents to have ammunition purchased from in-state companies shipped to them. Currently, Illinois residents can only have ammunition shipped if it’s bought out of state.

    He added that he doesn’t think his bill is controversial, and that Quinn’s move kills it.


  26. - Rich Miller - Wednesday, Aug 1, 12 @ 12:19 pm:

    ===and that Quinn’s move kills it.===

    A failed override attempt would kill it as well, however.


  27. - Yellow Dog Democrat - Wednesday, Aug 1, 12 @ 12:23 pm:

    In response to all the debate over whether the AV is Constitutional, let me just add one point.

    As Rich may recall and I’m sure Todd remembers, Gov. Ryan used his amendatory veto to add language banning discrimination against gay Americans to a bill which amended the Human Rights Act to prohibit discrimination against motorcyclists in public accommodations.

    Many of us who don’t have a vote in the General Assembly would probably assume that AV clearly changed the intent of the underlying bill and should have been rejected by the House.

    As I recall - and Todd remembers this one better than I do - it was upheld by the House with a razor-thin margin.

    My caveat is this: the House doesn’t rule on whether an AV is “Constitutional,” that is for the courts to decide.


  28. - wordslinger - Wednesday, Aug 1, 12 @ 12:34 pm:

    –Actually, both chambers have defined what the governor’s AV powers are by rule.–

    The GA can’t trump or interpret the Constitution. It may be unconstitutional, but that’s for the Supremes to say.


  29. - Agricola - Wednesday, Aug 1, 12 @ 12:41 pm:

    ===I don’t believe the AV can be ignored, although it can be dismissed by a ruling of the chair which is subject to roll call.===

    Not to be rude, but an AV most certainly can be ignored. Here are two of the ways in which it can be ignored: (1) if no legislator files a motion to accept the AV (and there is no mechanism to compel the filing of such a motion); or (2) if a motion is filed but not called for a vote.

    Also, even if the Senate were to accept the AV’s changes, that action does not change the ability of the House to ignore the AV.


  30. - Todd - Wednesday, Aug 1, 12 @ 12:56 pm:

    the bill was HB-1039:

    http://www.ilga.gov/legislation/legisnet92/hbgroups/hb/920HB1039gms.html

    The bill died as it was not called.

    the question could now become, as i eluded to earlier, what if the court finds the governor acted outside his authority and did not properly return the bill, so it should be law since he did not follow the proscribed procedure?


  31. - Yellow Dog Democrat - Wednesday, Aug 1, 12 @ 12:57 pm:

    True, Rich. Luechtefeld seems to be assuming that an override attempt would fail though. I give Todd more credit.

    @Agricola -

    Not rude at all. Both the “exceptions” you point out have the affect of accepting the Governor’s actions as a total veto. That’s an admission of defeat for the underlying bill, not what I would call “ignoring” the governor’s action. But I think we’re splitting hairs at this point.


  32. - Cincinnatus - Wednesday, Aug 1, 12 @ 1:25 pm:

    YDD,

    Splitting hairs is what keeps most of the legislators occupied, and most of the lawyers in this state busy billing hours!


  33. - Yellow Dog Democrat - Wednesday, Aug 1, 12 @ 2:06 pm:

    Todd -

    Seems like an unlikely scenerio, if the article Rich links to is correct. Although it is from 1977.


  34. - Kerfuffle - Wednesday, Aug 1, 12 @ 4:36 pm:

    Rich - Appreciate your comments regarding what the legislatre has done in regard to implementing rules for AVs but I don’t think legislative branch rules on how the executive branch can use (or in this case misuse) its constitutional authority holds much weight. I could be wrong - and often am according to my wife.


  35. - Yellow Dog Democrat - Wednesday, Aug 1, 12 @ 7:26 pm:

    To Rich’s earlier point, here is the applicable Senate Rule (emphasis added):

    9-2. Amendatory Vetoes.
    (a) The Governor’s specific recommendations for change with respect to a bill returned under subsection (e) of Section 9 of Article IV of the Illinois Constitution shall be limited to addressing the Governor’s objections to portions of a bill, the general merit of which the Governor recognizes, and shall not alter the fundamental purpose or legislative scheme set forth in the bill as passed.


  36. - unclesam - Wednesday, Aug 1, 12 @ 9:11 pm:

    If I recall correctly, Speaker Madigan over the last few years (especially during the final years of Blago) has instituted a process to have every AV thoroughly reviewed to ensure the Gov did not exceed his constitutional authority, and if the review process finds that the AV issued did exceed the constitutional restrictions then the Speaker simply did not allow any motion on that AV to advance and die in House Rules.


  37. - Yellow Dog Democrat - Thursday, Aug 2, 12 @ 7:27 am:

    @Uncle Sam -

    I think you are mostly right. I believe they are reviewed to determine whether they comport with House Rules, which are substantially similar to the Senate Rule posted above.

    Part of the reason I doubt the courts will intervene is that the legislature has, by rule, put a system in place for dealing with Amendatory Vetoes it feels are not germane. Its nonsensical for the General Assembly to run to the courts to seek relief.

    If, however, the bill were enacted with the AV, the Illinois State Rifle Association would probably have a strong case for striking it down. That’s where the constitutional question becomes legally relevant.


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