WASHINGTON — A nonpartisan congressional report released Wednesday concludes that it likely would be unconstitutional for a legislature to supplant a governor in accepting and using economic stimulus money.
The Congressional Research Service analysis could imperil tens of millions of stimulus dollars reserved for South Carolina and Texas, whose governors have said they will reject some of their states' shares of the money.
Sen. Lindsey Graham, a South Carolina Republican who requested the CRS study, wrote White House budget director Peter Orszag, asking him to clarify key provisions of the $787 billion stimulus bill that President Barack Obama signed into law last month.
"Right now there is ambiguity in the law," Graham told reporters Wednesday. "Can the legislature require funds from the stimulus funds for education or does it have to be the governor?"
The report by CRS, the research arm of Congress, focuses on a key clause in the stimulus law.
Aimed at bypassing governors who oppose using deficit spending to jolt the economy, the provision authorizes a legislature to apply for its state's share of the stimulus funds if the governor fails to do so within 45 days of the measure's Feb. 17 enactment — by April 3.
That provision could be challenged because it appears to blur the constitutional separation of powers between the executive and legislative branches of state government, the CRS found.
House Majority Whip Jim Clyburn, a South Carolina Democrat, crafted the clause to deliver stimulus funds to states whose governors had rejected them.
South Carolina Gov. Mark Sanford last week became the first governor to reject some of the stimulus money reserved for their states. Texas Gov. Rick Perry followed suit.
While the new analysis appears to open the door to possible legal action, Sanford was noncommittal about his future course of action.
"At this point, the CRS report raises more questions than it answers," said Joel Sawyer, a Sanford spokesman. "We will await whatever response and guidance Senator Graham gets from the (Obama) administration."
Clyburn dismissed the concerns raised by the Congressional Research Service about the stimulus law.
"The intent of the law is clear and unambiguous," Clyburn said. "I find nothing in the Congressional Research Service report which questions that intent. Anyone with constitutional concerns should raise them in a court of competent jurisdiction."
The report focuses on the 10th Amendment of the U.S. Constitution. That amendment, part of the Bill of Rights, codifies the principle of federalism and delineates the separation of powers between states and the federal government.
"An interpretation . . . which provided that a state legislature could, by concurrent resolution, direct the activities of a governor, state and local entities would appear to violate the Tenth Amendment," the report concluded.
That amendment says: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
The Congressional Research Service found that the stimulus law contains ambiguous language about the roles of state legislatures and governors. It also said several sections of the law contradict other parts of it.
The South Carolina Senate Finance Committee voted 18-3 on Tuesday to pass a measure authorizing the state General Assembly to seek the stimulus funds if Sanford fails to act.
Graham, who joined all but three other Republican senators in voting against the stimulus bill, said on Wednesday that such a move by the legislature could usurp Sanford's executive power.
"This is a very difficult constitutional issue," Graham said. "What I am trying to do is put the conflict on the table."
Sanford sent Obama a letter Tuesday asking whether he could allocate a portion of the money to school districts to pay off their debts.
Orszag on Monday rejected an earlier request from Sanford to use stimulus funds to reduce state government debt, saying the law specifies that the money must go for saving the jobs of teachers, police officers and other public employees.
Sanford's strong opposition to Obama's stimulus package has raised his national profile among conservative activists and fed speculation that he's eyeing a 2012 presidential run.
In addition to Sanford and Perry, other Republican governors — among them Sarah Palin of Alaska, Haley Barbour of Mississippi and Bobby Jindal of Louisiana — have criticized the stimulus plan and indicated that they might reject some money meant for their states.
Sanford says he has discretion over $700 million of stimulus funds for South Carolina, which is slated to receive $8 billion overall, including $2.5 billion in tax cuts, $1 billion in extra Medicaid payments and $463 million extra to build and repair roads and bridges.
In Charleston last week, Graham said he doesn't support Sanford's rejection of the stimulus money for the state.
"If it comes down to South Carolina getting the money or some other state getting the money, I would urge the governor to take the money," Graham said.
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