Can States Circumvent Anti-Stimulus Guvs?

A clause in the stimulus bill lets legslatures sidestep their governors.

March 11, 2009, 7:13 PM

March 11, 2009— -- South Carolina Democratic Congressman Jim Clyburn is urging his state's legislature to stop Republican Gov. Mark Sanford's plan to reject $700 million in stimulus funds. The House majority whip is uncertain, however, as to whether the course he is recommending is constitutional.

"I'm not a constitutional authority, I'm not a lawyer, and I will let lawyers and constitutional scholars argue that point and that's why we have courts," Clyburn said during a Wednesday conference call with reporters.

"I don't know whether or not it's constitutional," he added. "Whatever is constitutional is whatever the Supreme Court says it is."

Sanford announced Tuesday in a letter to state legislators that he wants permission from President Obama to apply a quarter of South Carolina's stimulus money, approximately $700 million, to pay down state debt rather than to fund government programs.

If Sanford is not granted the waiver he is requesting, he plans to reject the $700 million in federal stimulus money.

Clyburn charged during Wednesday's call with reporters that Sanford's move amounts to "political posturing."

"If he were looking out for the state he would be looking out for the people of the state," said Clyburn. "He's got a political agenda that runs contrary to the needs of his constituents."

Clyburn wants South Carolina's legislature to try to gain access to the funds by passing a concurrent resolution. The measure would be passed on a simple majority vote and could not be vetoed by the governor. The Democratic congressman put this provision into the stimulus package because he knew that Sanford, a fiscal conservative eyeing a 2012 run for president, was likely to reject at least some of the stimulus money.

The constitutionality of Clyburn's provision was questioned Wednesday morning by Yale Law professor Jack Balkin.

"I think this provision may not be constitutional," wrote Balkin on his "Balkanization" blog. "Unless you can demonstrate that under South Carolina law, the South Carolina legislature, acting alone, speaks for the state, it would seem to me the governor's consent is necessary."

"Federal law can offer the states money to enforce federal mandates and even to pass legislation, but what it may not do is decide which state official is authorized to consent to federal grants that bind the state and its operation," he added.

Balkin raised questions about the constitutionality of the Clyburn provision even though the legal scholar is a sharp critic of Sanford's economic approach.

The Yale professor thinks Sanford's attempt to try to pay down the state's debt in the middle of a recession of this magnitude "seems perverse" and compared it to FDR's "very unwise decision to try to balance the federal budget in 1937, which sent the country back into an economic tailspin."

Balkin believes the Clyburn provision, which attempts to circumvent the role of governors in accepting certain federal funds, runs afoul of the Constitution's spending clause jurisprudence.

As he put it in the title of his blog posting, "Even Economic Fools Have Constitutional Rights."

Asked about Balkin's analysis by ABC News, Clyburn said, "Irrespective of what the constitutional scholar may have said I do believe that the people who speak forcefully for the people of South Carolina sit in the legislature.

"I don't know whether or not what the legislature is doing is constitutional," he added. "But until somebody tells us to the contrary, I know they represent the wishes of the people."

ABC News' Ferdous Al-Faruque contributed to this report.

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