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Constitutional controversy
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The General Assembly will be back at the Statehouse tomorrow to continue work on items that were included in the concurrent resolution extending the session. These items are the budget, gubernatorial vetoes, conference and free conference reports, redistricting, and appointments. This end-of-session resolution is called a Sine Die Resolution because it dictates how and when the General Assembly will conclude the session. To adjourn sine die means to adjourn for an indefinite period. So when we adjourn sine die, the General Assembly does not plan to meet – barring any emergencies – until the constitutionally mandated date of the second Tuesday in January. But what has typically been a routine measure this year has encountered some heated debate and a Supreme Court ruling.

Since the House and Senate recessed on June 2 (with plans to return to session on June 14), the Governor attempted by Executive Order to convene the General Assembly on June 7 for an extra session to pressure the General Assembly to pass four pieces of legislation. These are 1) a bill that would create a new Department of Administration that would take certain functions currently under the Budget and Control Board and merge them with agencies in the Governor’s Office; 2) a bill that would require the Governor and Lieutenant Governor to run on the same ticket; 3) a bill that would allow the Governor to appoint the State Superintendent of Education; and 4) a bill that would merge the Department of Probation, Pardon, and Parole with the Department of Corrections.

State Senate President Pro Tempore Glenn McConnell filed suit in the original jurisdiction of the SC Supreme Court to challenge the Executive Order. The Supreme Court ruled on Monday, June 6, and, by a 3-2 majority, granted Senator McConnell’s petition by staying the Executive Order.

The Court cited two sections of the South Carolina Constitution. Article I, Section 8 (the separation of powers doctrine) provides: “the legislative, executive, and judicial powers of the government shall be forever separate and distinct from each other, and no person or persons exercising the functions of one of said departments shall assume or discharge the duties of any other.” Also pertinent to the issue before the Court was Article IV, Section 9 of the Constitution that states, “the Governor may on extraordinary occasions convene the General Assembly in extra session.”

In a short and technical ruling, the Court said, “Although the General Assembly is currently in recess, it has not adjourned sine die and, therefore, is still in its annual session. Under these specific facts, respondent [the Governor] cannot convene an “extra” session of the General Assembly since it is currently in session. To do so would interrupt the annual session and would violate the General Assembly’s authority to set its calendar and agenda and would constitute a violation of the separation of powers provision.”

Since the ruling, Senator McConnell has said that he will introduce a resolution to amend the previously passed Sine Die Resolution to include the Department of Administration bill among those items that can be taken up when the General Assembly convenes on June 14. To pass, the resolution must receive the support of two-thirds of the Senate. The House passed this bill earlier in the session and it has since been up for consideration in the Senate where some significant amendments were being debated, one of which would abolish the Budget and Control Board completely. Whether or not the Senate will be able to reach a two-thirds majority on the resolution remains to be seen. If the Senate does pass the amended resolution, the House will also have to vote by a two-thirds majority to take up the bill.

The House has also passed the other three bills the Governor would like to see enacted this session. However, it is uncertain if the Senate will attempt to further amend the Sine Die Resolution to include those. In fact, the bills that would require the Governor and Lieutenant Governor to run on the same ticket and the bill that would make the State Superintendent of Education an appointed official rather that a publically elected one would have to go to the voters in the next General Election because they are measures that require amending the state constitution. There is no urgency to pass them this year, since they cannot be considered by the voters until November 2012.

The Separation of Powers doctrine that the Supreme Court referenced in McConnell v. Haley is very much alive and playing an active role in the events of politics and government today. This recent constitutional controversy is a great lesson of the wisdom of the founders to establish a system of checks and balances between the branches of government and procedural safeguards that mandate a deliberate process of enacting laws.