On November 10, 2021, the Washington Supreme Court handed the state legislature a win and Governor Jay Inslee a loss when it held the governor violated the state constitution by vetoing a line in an appropriations bill.[1]

Washington’s constitution gives the governor the power to veto whole bills, “an entire section” of a bill, and individual “appropriation items.”[2] In this case, Governor Inslee vetoed a line in the appropriation bill’s “conditions and limitations” section that prohibited the Department of Transportation from considering fuel type when giving certain transportation-related grants (the “fuel type condition”).[3] After his veto, the legislature sued, seeking a declaratory judgement that the veto violated the state constitution.[4]  In response, the governor argued that the fuel type condition was an “appropriation item” or, in the alternative, that it violated other parts of the state constitution.[5]

As to his first argument—that the fuel type condition was an “appropriations item”—the court disagreed with the governor. Beginning with the history of Article III, Section 12, the court held that it reflects a “clear intent to carefully limit this extraordinary [line-item veto] power.”[6] That section was created to limit historical overreach by the executive into the affairs of the legislature, and therefore, when the court interprets “section[s]” or “appropriation items,” it must defer to the legislature’s formatting decisions.[7]

With respect to appropriation items, the court previously defined that term as “any budget proviso with a fiscal purpose contained in an omnibus appropriations bill.”[8] Accordingly, a veto of anything less than “the whole proviso” is invalid.[9]  When determining whether something is a whole proviso, the court again defers to the legislature’s designation of sections and subsections, but that deference is not absolute.[10] The court does not defer if the legislature’s designation “is obviously designed to circumvent the Governor’s veto power.”[11]

In the present case, the court found no evidence that the legislature tried to immunize the fuel type condition from the governor’s veto, and so, it deferred to the legislature’s designation of that line as a condition upon a discrete appropriations item—not itself an appropriations item.[12]

Turning to the governor’s second argument—that the fuel type condition was unconstitutional—the court rejected it too.  That argument turned first on Article II, Section 19, which says “[n]o bill shall embrace more than one subject, and that shall be expressed in the title.”[13] In past cases, the court held that Section 19 prohibits the legislature from including substantive law in appropriations bills.[14]  Governor Inslee, therefore, argued that the fuel type condition was substantive law.[15]

The court disagreed. The legislature, it held, is free to attach “strings, or conditions of expenditure” to appropriations.[16] What’s more, the fuel type condition is not substantive law because it does not amend existing statutory conditions on grant eligibility; rather, it simply prohibits an agency from adopting one particular criterion.[17]

The governor offered another constitutional argument, claiming that the fuel type condition violated Article II, Section 37, which says, “[n]o act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length.”[18] The governor argued that the fuel type condition violated that section because it amended the existing statute setting forth grant conditions without identifying it.[19]

Again, the court disagreed. The fuel type condition, the court explained, “neither creates nor affects any rights” and the duty it imposes on the Department of Transportation “can be determined without referring to any other statute or enactment.”[20]

Justice Mary Yu, joined by Chief Justice Steven González, dissented, arguing that the majority had “erode[d] the distinction between general and line item vetoes” that prior precedent had recognized.[21] In her view, the fuel type condition was a whole appropriation item because it amounted to a discrete “nondollar budget proviso.”[22]

Justice Yu also argued that the fuel type condition violated both Section 19 and Section 37 of Article II. As to both sections, she thought the condition was unconstitutional because it effectively modified the statute governing the criteria for funding conditions.  Thus, it was substantive law, and it amended a statute without identifying it.

The ultimate import of the case is to limit somewhat the governor’s line-item veto, and to increase the legislature’s ability to insulate provisions from that veto.

[1] Washington State Legislature v. Inslee, No. 98835-8, 2021 WL 5227428 (Wash. Nov. 10, 2021) (herein after Legislature v. Inslee).

[2] Wash. Const. art. III, § 12.

[3] Legislature v. Inslee, at *1.

[4] Id.

[5] Id.

[6] Id. at *2.

[7] Id., at *4.

[8] Id., at *5 (quoting Washington State Legislature v. Lowry, 931 P.2d 885, 893 (1997)).

[9] Id.

[10] Id. at *5–6.

[11] Id. at *6 (quoting Lowry, 931 P.2d at 891).

[12] Id. at *8.

[13] Wash. Const. art. II, § 19.

[14] Lowry, 931 P.2d at 895.

[15] Legislature v. Inslee, at *11.

[16] Id. at *11–12.

[17] Id. at *13.

[18] Wash. Const. art. II, § 37.

[19] Legislature v. Inslee, at *14.

[20] Id. (quoting Washington Educ. Ass’n v. State, 604 P.2d 950, 952 (1980)).

[21] Id. at *16–17 (Yu, J., dissenting).

[22] Id. at *20.

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