Lt. Gov. McMaster Asked to Rule on Bill’s Constitutionality

April 3, 2015

Inside Insight

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AND SENATOR MALLOY SUDDENLY CARES
ABOUT SEPARATION OF POWERS

A Tuesday ruling by the Senate’s President, Lieutenant Governor Henry McMaster, got the attention of one state senator. But it wasn’t the ruling itself that drew criticism from Sen. Gerald Malloy (D-Darlington), but the fact that the president was asked to rule on the question at all.

Here’s what happened. The Senate was preparing to take a vote on S.170 – a bill creating an internet sales tax for certain out-of-state retailers – when Sen. Ray Cleary (R-Georgetown) raised a point of order that “the bill was out of order in that it violates Article III, Section 15 of the South Carolina constitution, which requires measures that raise revenue to originate in the House of Representatives.”

It’s hard not to suspect that Cleary’s motivation for raising the constitutional point wasn’t in the hopes of getting a precedent he could then cite when the constitutionality of his own revenue-raising bill comes up for debate. The lieutenant governor overruled the point of order, allowing the Senate to vote on the bill.

It was that process that inspired Sen. Malloy to make a “point of personal interest” Wednesday afternoon. Malloy argued to the body that asking the Senate President – who is also a member of the executive branch by virtue of his role as lieutenant governor – to rule on the constitutionality of a bill before the Senate was a violation of the separation of powers. Not only did asking the president to rule on the constitutionality of a bill invade the judicial branch’s sole authority to interpret the constitution, Malloy argued, but it also violated the separation of powers from a legislative angle. “If the lieutenant governor ruled a bill out of order for a constitutional violation,” he contended, “he would then be assuming a legislative function because, in effect, what he does is stops the bill, and that function should lie in this body.”

I always find it interesting – and infuriating – that lawmakers have a sudden affection for the separation of powers doctrine when it suits their purposes, but couldn’t care less about it when they’re passing laws that usurp power from the executive or judicial branches.

Many lawmakers, for example, contend that the constitution prohibits the legislature from being investigated and punished by the Ethics Commission because its members, while confirmed by the legislature, are appointed by the governor. See how that works?

Perhaps an even more egregious example is the judicial election process. Not only do lawmakers sit on the panel that screens judicial candidates, but the entire legislature actually elects the judges that will be expected to rule on the constitutionality of the legislation they pass. That doesn’t seem to bother Malloy or his colleagues at all. Ironically, he told the body that the responsibilities of the executive and judicial branches are critical, and that the legislature “cannot encroach upon it.” Sure it can’t.

Malloy admitted, however, that the body had previously asked for similar rulings (similar to the one Cleary asked for) but wanted that process to stop. Interestingly enough, a motion to set Sen. Cleary’s $800 million-plus tax and fee increase bill for special order (meaning it would have priority over other bills) failed last week on a 23-22 vote (a vote of two thirds was needed for it to pass). Prior to the vote, several senators voiced concerns about the constitutionality of a revenue-raising bill originating in the Senate.

Maybe I’m being cynical here, but I can’t help thinking some members are trying to cut off their presiding officer’s ability to shut down the consideration of such unconstitutional legislation.

Whether or not they succeed, if indeed that’s what they’re trying to do, is far from certain. In the meantime, members of the Senate would be wise to read the recent Attorney General’s opinion (requested by Sen. Larry Martin) concluding that S.523 – Cleary’s bill – must originate in the House.

Jamie Murguia is Director of Research at the S.C. Policy Council, The Nerve‘s parent organization