The Kentucky Supreme Court yesterday delivered a very important message to Gov. Matt Bevin: You don’t make the law, you follow it.
It’s unfortunate that neither Bevin nor Stephen Pitt, his general counsel, understood this before disregarding the budget passed by the General Assembly and cutting university appropriations in the last months of their fiscal year.
It will be unconscionable if Bevin and his advisers don’t take to heart the lessons patiently spelled out in in the 5-2 ruling written by Justice Mary Noble decision.
Since taking office after beating former Attorney General Jack Conway last fall, Bevin has repeatedly claimed a mandate to act unilaterally in accord with his own judgment or inclination rather than the laws of Kentucky and the United States. This is the first of several legal challenges to his actions to be decided by the Kentucky Supreme Court.
The case decided Thursday grew out of Bevin’s decision in March to cut public university funds for the final three months of the 2016 fiscal year. That money had been appropriated in the biennial budget passed in 2014. Bevin initially proposed a 4.5 percent cut but rolled it back to 2 percent — a cut seven of eight presidents said in a letter that they agreed to, “if it is determined by the courts to be permissible.”
The issue of whether the courts could become involved was a real one since the legislative body — the Kentucky General Assembly — passes the budget law authorizing spending and generally the executive branch — the governor — does not have the authority to make midterm changes to that law unless revenues fall short of the budgeted amounts.
None of the universities chose to challenge Bevin’s action, but Attorney General Andy Beshear did, saying the governor was breaking the law, taking for himself power — to appropriate money — that belongs to the legislature.
Bevin’s team relied on some imaginative interpretations of various statutes to defend his power to override both the legislature and the boards of the universities to determine their budgets, and claimed that, since the university presidents agreed to the deal that Beshear had no right to intervene.
Those interested in the legal reasoning for allowing Beshear’s challenge can read the 11 pages Noble devotes to it but we will offer a more down-to-Earth rationale. It’s just this: University presidents work in a political environment, and it is no surprise that they decided to bargain with Bevin rather than sue him. He is, after all, still in the first year of a four-year term in which he will propose budgets, appoint trustees to their boards and otherwise impact their institutions.
Bevin’s stated reasoning for cutting the university budgets was to capture money to shore up Kentucky’s public pension funds.
There’s no debating that the pension funds are in crisis and need a huge infusion of money. But Bevin’s job is not to ride in like a cowboy and grab money appropriated for other important aspects of state government to accomplish this end.
His job is to use the enormous power his office does have to lead, to persuade legislators to endorse his solutions for this crisis, or to work with them to find a solution.
But Bevin risks wasting his years in the governor’s office in a series of power grabs that will be turned back in the courts unless he accepts that, as Noble writes, “the governor, like everyone else, is bound by the law.”