AG Nessel Issues Formal Opinion Finding Mechanism Allowing Appropriations Committee to Disapprove Work Projects Unconstitutional

LANSING – Today, Michigan Attorney General Dana Nessel issued a formal opinion concluding that a “disapproval” mechanism allowing one legislative committee to unilaterally terminate funding previously appropriated by the full Legislature and the Governor is unconstitutional. The opinion was requested by the Senate Appropriations Chair, Sarah Anthony, (PDF) following a December vote of the Michigan House Appropriations Committee to “disapprove” nearly $645 million in state funding that had already been enacted into law.  

This disapproval mechanism, MCL 18.1451a(3), contained in the Management and Budget Act, was the subject of the Senator’s opinion request. The statute allows funding approved by the Legislature and the Governor for a prior fiscal year to continue to be used for its intended purpose for a new fiscal year. The State Budget Director, who oversees spending for the state on behalf of the executive branch, is authorized under the Management and Budget Act to approve this continued use of previously approved funding. These authorizations by the State Budget Director are called “work projects.” The same statute also authorizes either the Senate or House appropriations committee, acting alone, to disapprove those work projects. 

The Attorney General concluded in her opinion that this disapproval mechanism violates both the Separation of Powers and Bicameralism and Presentment requirements in the Michigan Constitution. The Separation of Powers requirement limits the ability of one branch of government to exercise the functions of another. The presentment and bicameralism requirements reflect the constitutional mandate that laws must be debated and passed by both houses of the Legislature and presented to and signed by the Governor. The full opinion from Attorney General Nessel may be read here (PDF). 

Attorney General Nessel found the disapproval mechanism allowing either appropriations committee to disapprove work projects amounts to an unconstitutional violation of the separation of powers because it impermissibly allows a single legislative committee to exert control over the executive’s implementation of enacted laws. The Attorney General further determined that this constituted a violation of the Constitution’s bicameralism and presentment requirements because the committee veto doesn’t comply with the constitutional requirement that legislative action be approved by both Legislative chambers and presented to the Governor, except in only certain narrow and explicit circumstances expressly identified within the Constitution itself.  

“By empowering a single legislative committee to negate the State Budget Director’s work-project designations, the statute reserves the very administrative control that the separation of powers forbids,” wrote Nessel in her opinion. “This disapproval mechanism effectively creates a ‘legislative veto’—or, more accurately, a ‘legislative committee veto.’ This comprises an unconstitutional reservation of administrative control that interferes with the executive branch’s core function of executing the laws. Under Article 3, § 2, when an appropriation is enacted, the Legislature’s role ends, and the executive branch’s duty to faithfully execute the law begins.” 

Attorney General Nessel went on to conclude that the unconstitutional legislative committee veto disapproval mechanism is severable from the rest of MCL 18.1451a. Therefore, the remaining portions of the statute pertaining to work projects, including the Director’s authority to designate work projects, temporal limits, substantive criteria, and reporting requirements, remain intact and enforceable. 

A video from Attorney General Nessel discussing the opinion can be found here and is available for public use.

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