In February, Tea Party groups from across the state marched on the Capitol in Austin demanding that Gov. Rick Perry nullify any federal health-care plan if it became law.
Armed with signs, flags and a key voting bloc that the governor rode to his party’s nomination, the Tea Party demanded that Perry call a special session of the Texas Legislature to assert that Texas has a 10th Amendment right against federal health care.
Make no mistake, Perry needs the support of the Tea Party to get re-elected in November. For the last six months, he has been feeding this constituency with a steady supply of red meat rhetoric, bashing Washington and supporting the Great State of Texas.
Two questions: Will he? And can he?
Answering the second question first: Yes, he can.
Simply put, Article 4 of the Texas Constitution gives the Executive Brach the authority to call a special session.
During his tenure in office, Perry has called eight special sessions for issues ranging from education to congressional redistricting to the state budget.
Special sessions can only last 30 days, so governors usually try to keep sessions limited in scope and free from highly political issues.
In 2002, the Texas Legislature became bogged down time after time when the governor called special session after special session in an effort to redraw the state’s Congressional maps in an off year.
Memories of that quagmire are still fresh in the governor’s office and may affect how much of a stomach Perry has to call another highly controversial special session.
Moreover, there is the question of the 10th Amendment and whether states can use it to nullify federal health-care reform. This suggestion is a matter for the courts, and to that end, it already has begun to take shape.
States do have the power to reject federal legislation... to an extent.
Last month, Perry rejected federal education money, opting out of the “Race to the Top” funds. But deterimining to what extent health-care legislation is like education dollars will more than likely be argued in the courts.
Simply put: Is it even legal for Texas to reject a federal law? The lawyers will hash this out.
Texas and 13 other states (Florida, Alabama, Colorado, Idaho, Louisiana, Michigan, Nebraska, Pennsylvania, South Carolina, South Dakota, Utah, Washington and Louisiana) already have sued the federal government, challenging the legality of the health-care legislation.
Virginia and Idaho recently passed state laws that prohibit state residents from being required to purchase insurance or from being subject to fines for failure to do so.
Texas has no such law as of yet and will have to center its argument on the scope of the federal health-care law; specifically, that health care is beyond the “enumerated powers conferred upon Congress.”
Back to the first question: Will he?
Governor Perry is in the middle of a re-election campaign and is currently focusing on Bill White. Its doubtful that he wants a distraction from the race. Furthermore, a special session would tie him up for weeks, keeping him off the trail and giving White plenty of ammunition.
Also importantly, a special legislative session would bind Perry’s hands financially. Texas has restrictions on giving and receiving campaign contributions during a legislative session. In short, Perry would not be able to hit the trail, leaving White a major opening to take the seat.
That being said, Perry could back a nullification proposal during the regular session in 2011, but even then, such a proposal would be highly controversial and would likely bog down the Legislature, which only has 140 days to conduct business. (The only job the Texas Legislature has to do is pass a budget.)
Texas Speaker of the House Joe Straus (R-San Antonio) has said he anticipates voter ID to once again appear on the state’s agenda. Add to that the constitutionally mandated congressional redistricting and throw into the mix the fact that Texas could get as many as three more seats in Congress as a result of the 2010 Census, and the plate is full.
If the Texas Legislature were to wade into the nullification pool, it would not be alone. Georgia, Idaho, Arizona and Virginia all have gone down that road to block health care. In all, 36 states have propositions or bills in the works that would ban or limit parts of the health-care bill.
The matter already is headed to the courts, and while the governor may cheer from the sidelines, it is unlikely he will use any of his political capital to stop the legislation.
