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Home / Opinion Digests / Constitutional / Constitutional – Separation of Powers – Appropriations Act – Line Item Veto – Administrative – CON Act – Funding Cut

Constitutional – Separation of Powers – Appropriations Act – Line Item Veto – Administrative – CON Act – Funding Cut


Amisub of South Carolina, Inc. v. South Carolina Department of Health & Environmental Control (Lawyers Weekly No. 010-042-14, 20 pp.) (Jean Hoefer Toal, Ch.J.) (Costa Pleicones, J., dissenting) S.C. S. Ct.

Holding: The governor’s veto of a line item in an appropriations act does not repeal a separate, already existing statute.

Respondent (DHEC) is required to carry out its duties under the State Certification of Need and Health Facility Licensure Act (the CON Act).

A line item veto eliminates any authority to expend the vetoed funds for the objects and purposes specified on the line. To the extent Jackson v. Sanford, 398 S.C. 580, 731 S.E.2d 722 (2011), is read to imply that a line item’s objects and purposes refer to the underlying legislation, we now recognize that these assertions in Jackson are imprecise. DHEC argues that this language should be construed to mean that a line item veto extends beyond a line in an appropriations act to affect an underlying permanent law. This implication is not intended.

The governor has no authority to use the line item veto power to negate the effect of a long-standing permanent law. The authority to enact, modify, or repeal legislation lies solely within the General Assembly’s broader authority. Expanding the line item veto power to allow it to reach a permanent law enacted years earlier by vetoing a line item in an appropriations act would violate the separation of powers doctrine.

We recognize that an appropriations act, though generally temporary in duration, has equal force and effect as a permanent statute and may suspend the operation of a permanent statute during the time the appropriations act is in force. However, only provisions of a permanent statute that conflict with the current budget provisos are suspended.

We find no irreconcilable conflict between the CON Act and the absence of funding in the 2013–2014 Appropriations Act. Even more importantly, we find that in sustaining the governor’s Veto 20, the General Assembly did not intend to suspend DHEC’s duty to administer the CON program.

The CON program is mandated by the CON Act, a free-standing, permanent piece of legislation, not by a line item appropriation. We cannot conceive that by sustaining Veto 20, the General Assembly intended to abolish a program mandated by permanent law which itself has not been repealed.

Furthermore, because the House failed to overrule Veto 20, the Senate never had the opportunity to demonstrate its intent. Thus, a finding that the House of Representatives’ decision to sustain Veto 20 reflected the General Assembly’s intent as a whole to suspend the CON program would ignore an entire chamber’s intent. We cannot sanction such a result.

The governor’s veto message is not a part of the 2013-2014 Appropriations Act and does not have the force of law because it is neither a legislative act nor an executive order. To hold otherwise would violate the separation of powers doctrine.

Although Veto 20 effectively struck the funding for a line item in the 2013–2014 Appropriations Act, we find that in sustaining Veto 20, the General Assembly did not intent to suspend the CON program. Therefore, we hold that DHEC has a duty to administer the CON program, as contemplated by the CON Act, for Fiscal Year 2013–2014.

DHEC may use its emergency regulatory authority to adopt a fee structure to support the administration of the CON program or DHEC may transfer appropriations within programs and within the agency. While we hold that DHEC must fund the CON program, we decline to specify the manner in which DHEC must do so.


(Pleicones, J.) In my opinion, when the House sustained the governor’s veto, the effect was to prevent the expenditure of funds by DHEC for the CON program for fiscal year 2013-2014. The CON program and its requirements remain the law, but all applications in process are suspended, no new applications can be accepted, and all other matters are in limbo unless and until the program is again funded.

I do not understand the majority’s concern that the Senate did not have the opportunity to vote on the governor’s veto since the House did not override it. This procedure is mandated by the S.C. Constitution.

I know of no authority that would permit this court to order DHEC to fund the CON program in the face of the House’s failure to override the governor’s line item veto. Such interference with the prerogatives given to the executive and the legislature is a clear violation of the separation of powers doctrine.

Further, under the majority’s decision, an agency is free to ignore the will of the governor as expressed through her veto, and that of the General Assembly in sustaining that veto, and may spend money as it sees fit.

Finally, if it were true that DHEC could revive the dormant CON program simply by raising fees through its emergency regulatory authority, then any rogue agency could operate in defiance of the Constitution which gives the governor and the General Assembly the authority to suspend the operation of a program by line item veto and subsequent vote.

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