Open for Business?

May 27, 2014

For weeks, speculation has run rampant at the State Capitol over what authority Governor McAuliffe might have under the Virginia Constitution to keep the state operating if a budget is not passed by the start of the new fiscal year on July 1st.

Attorneys for the nonpartisan Division of Legislative Services were asked to advise state lawmakers about executive options for paying bills or mitigating a government shutdown.  At the heart of the issue is the constitutional requirement for separation of powers and co-equal branches.


The Constitution clearly says only the General Assembly can make laws—and the state can only spend money appropriated by law.  But Attorney Mark Vucci said voter-approved debt has another requirement.

“The governor has to ensure that Article 10, Section 9b principle and interest payments are paid in a timely fashion or when those payments are due.”

A provision that salaries of statewide officials and judges cannot be diminished may require their payment.  Vucci also said courts elsewhere have ruled that some federal programs administered by states must go on.
“The courts said, ‘Well, the state is merely a pass-through. These monies are needed by the citizens of those states. And there’s a requirement for a prompt meet for those monies.’”

Under a state law, the governor can determine if there’s substantial harm that constitutes an emergency. Vucci said he could then ask executive branch employees to work—but authority to pay them has expired.

“Some parts of state government might be open. So there could be some sort of IOU or some other promise to pay issued for services performed.”

He added that the state Supreme Court may need to decide what’s constitutional or not.