Is a governor's prescription for a special session agenda also a prohibition?
During the special session now under way, lawmakers have challenged constraints placed on them by Gov. Jay Nixon.
The challenge has taken the form of a "Facebook Fix" bill that conflicts with the more narrow remedy authorized by Nixon.
The proposed legislation, which advanced within the Senate, rewrites a social media provision of a law targeting teachers who engage in inappropriate behavior with students.
Nixon called on lawmakers to repeal, not rewrite or revise, the provision.
Does he have that authority?
The applicable passage of the Missouri Constitution is found in Article IV, Section 9, which reads: "On extraordinary occasions he (the governor) may convene the general assembly by proclamation, wherein he shall state specifically each matter on which action is deemed necessary."
(Whether the existing special session was prompted by an extraordinary occasion is debatable, but that is an issue for another time).
Regarding the constitutional mandate, the executive, legislative and judicial branches generally agree the governor prescribes the agenda, which - by extension - proscribes action on other issues.
This interpretation seems reasonable. Otherwise, we might have special sessions dealing with the proverbial "everything but the kitchen sink."
(Whether this session, with its varied agenda, fits that description also is debatable, but again is a matter for another time).
The critical question is whether the governor is empowered to prescribe the nature of the "action" - as in his order to repeal, rather than revise or rewrite.
The sponsor of the bill contends he does not.
State Sen. Jane Cunningham, R-Chesterfield, has cited a Missouri Supreme Court ruling to support her view that "the Legislature is authorized to legislate upon the subject or matter in any way it sees fit."
State Sen. Jason Crowell, R-Cape Girardeau, added his concerns. He lamented "this, yet again, highlights that the governor in this special session is hamstringing, is handcuffing, in an unacceptable and repugnant way - in my opinion - what we can and cannot discuss."
And, lest the legislative reactions seem strictly partisan, Democrat State Rep. Chris Kelly of Columbia said: "The argument that it goes beyond the (governor's) call is constitutionally fatuous," defined as inanely foolish.
We believe, based on the constitutional language, the lawmakers have the better argument. The language authorizes the governor to specify matters, not actions.
The counter-argument that the governor is empowered to determine both the issue to be considered and the action to be taken essentially would render the Legislature superfluous - a breach of the separation of powers.
Ultimately, the courts, if asked, will make the call.