LePage faces an uphill veto battle, but he’s not wasting our time

The Law Court will have its work cut out on Friday as the “through the looking glass” nature of this past legislative session continues. Who would have guessed in January that Mark Eves would hire a Republican attorney to represent him against Paul LePage’s Democratic counsel?

But arguments — not personalities — will carry the day in court. And there are enough wrinkles in the facts as presented to make it an interesting case.

The first argument put forward by the Governor, supported by the Constitutionalists, and addressed by the Legislature and Attorney General focuses on the validity of the legislative session. The facts are fairly straightforward:

The Constitution requires a law to set limits on legislative sessions. The law set the end of session for June 17, unless the Legislature extends the session. The 17th came and went. The Legislature extended the session on the 18th.

The question is how the statute controlling sessions should be treated. If it is a normal statute, the law allows legislative rules to override statutes for internal legislative matters — exactly what the Legislature argues. However, if the statute is “upgraded” because it effectuates a Constitutional requirement, then the legislature was not validly convened after the 17th and all its acts are null and void.

The logic of the latter is quite strong. Unfortunately, it is likely a bridge too far for the court. The result of such a holding would mean the GA bill does not become law, but it also means the budget is void, as is permitless carry and numerous other laws. While individual justices may be inclined to support such reasoning, the chaos which will ensue will likely prevent them from making that choice.

The second main argument is the meaning of “adjournment,” coupled with the uncommon return “at the call” of the Speaker and President. As I previously noted, this was likely done to prevent the Governor from executing line-item vetoes.

The briefs all emphasize different points of the Constitution. The Legislature focuses on “adjournment” itself, while the AG focuses on “adjournment prevent[ing bills’] return.”

Part of the problem with the public perception of this case comes from the use of shorthand. For example, most paying attention would tell you that bills generally become law 90 days after adjournment sine die.

However, the Constitution uses the language “recess” as the trigger to start the clock on effective dates. This presents a question: why would the Constitution use two different words — “recess” and “adjournment” — to describe the same event? Would not logic dictate that different word choices were intentional?

There are countless other hypotheticals. What if the Governor sought to return the bills on the 10th day at 11:59pm and the Legislature was unattended? Does the authority to veto lapse? How does the line-item power play into this, since it must be used within 24 hours?

Ultimately, the Governor has an uphill fight. But claiming his argument is a “waste of time” or “meritless” ignores the substance of his claim and the inherent authority of a co-equal branch of government.

Michael Cianchette

About Michael Cianchette

Michael Cianchette was the chief counsel to Gov. Paul LePage from 2012-2013 and deputy counsel from 2011-2012. A Navy reservist, he was deployed to Afghanistan from 2013-2014 as a trainer and adviser to the Afghan National Police. He is an alumnus of the Leadership Maine program and holds a BA in economics and political science from Boston College along with a JD and an MBA from Suffolk University. He works as in-house counsel and financial manager for a number of affiliated companies in southern Maine.