It depends on what the meaning of "approval" is


Beyond all the breathless reaction and inevitable misdirection that accompanied the Dirty Half-Dozen mining tax shocker this week comes a fundamental legal question: What does the word "approval" mean?

That is, what does it mean in Article 19, Section 2 of the Constitution in regards to the disposition of an alternative to the margins tax should one surface once the dreaded levy is ignored by lawmakers:

"If the Legislature rejects such proposed statute or amendment, the Governor may recommend to the Legislature and the Legislature may propose a different measure on the same subject, in which event, after such different measure has been approved by the Governor, the question of approval or disapproval of each measure shall be submitted by the Secretary of State to a vote of the voters at the next succeeding general election."

We can safely say Gov. Brian Sandoval, no matter how sunny a mood he may find himself as spring arrives, will not propose an alternative tax.

But what if state Senate Minority Leader Michael Roberson and his band of merry taxers can get this mining alternative past both houses? Yes, it's unlikely, perhaps, but not impossible.

Or what if Roberson's move provokes Democrats to have a serious talk about an alternative, and they agree to a melange to go on the ballot -- a confection made up of a mining tax, an admissions tax, a mystery tax ingredient?

We can assume, because the governor has said he is opposed, that he will not approve of the idea. But, as I have asked before, what does that mean?

I asked some very smart lawyers, including one who knows a lot about NRA, who told me: "I can honestly say I don't know."

Indeed. No one really does.

I'm no lawyer, but there doesn't seem to be any mention of a veto and an override, and this is a special case in the Constitution, unlike other bill passages. On the other hand, the word "approval" could be construed to mean "in the ordinary approval of a measure," which would mean to disapprove it Sandoval would have to veto it.

So I am, ahem, supremely confident it....could go either way. (I welcome legal opinions in the comments or via email.)

Roberson seems confident the alternative tax bill would be deemed vetoed and lawmakers could override. He has verbal confirmation from legislative attorneys.

That is, it is "the same language that is used for any bill," he told me. "The word 'veto' is not in the Constitution in connection with approval by the governor for any legislation."

And he's right. The word "veto" does not appear in the Constitution when it refers to the governor approving bills. But as strong a case as that may be, "approval" also has been construed in practice to mean the governor either signs it or he...vetoes it.

UPDATE: The wording of the Constitution is instructive, too. Consider what Article 4, Section 35 actually says:

Every bill which may have passed the Legislature, shall, before it becomes a law be presented to the Governor. If he approve it, he shall sign it, but if not he shall return it with his objections, to the House in which it originated, which House shall cause such objections to be entered upon its journal, and proceed to reconsider it; If after such reconsideration it again pass both Houses by yeas and nays, by a vote of two thirds of the members elected to each House it shall become a law notwithstanding the Governors objections. If any bill shall not be returned within five days after it shall have been presented to him (Sunday excepted) exclusive of the day on which he received it, the same shall be a law, in like manner as if he had signed it, unless the Legislature by its final adjournment, prevent such return, in which case it shall be a law, unless the Governor within ten days next after the adjournment (Sundays excepted) shall file such bill with his objections thereto, in the office of the Secretary of State, who shall lay the same before the Legislature at its next Session, in like manner as if it had been returned by the Governor, and if the same shall receive the vote of two-thirds of the members elected to each branch of the Legislature, upon a vote taken by yeas and nays to be entered upon the journals of each house, it shall become a law.


So if Sandoval simply does not sign the hypothetical alternative tax, does it just become law? Or does it not operate like a regular bill?

Ah, the Nevada Constitution. So many dissonant sections....

But my opinion, Roberson's opinion, LCB's opinion don't matter much. The  Supreme Court almost certainly will have to decide it as the governor will see this as a critical part of executive power he will want to maintain. If I were governor, I would.

And who wouldn't relish the spectacle of a GOP-led tax not being approved by a Republican governor and then lawmakers, led by the GOP senators who started it all, facing him in court to have the right to override him?

This is a true legal conundrum. So I wondered what the governor thought, and I posed questions to his office:

I assume since this has been a possibility since the beginning, you guys have an opinion on Article 19, Section 2. Is your position the governor simply can not sign and it is over? Or is it tantamount to a veto?

Also, under what circumstances would/should the governor stop a measure passed by lawmakers from going to the people for a vote.
I received quite the unsatisfying answer: "The Constitution requires the approval of the governor."
This, of course, I already knew, having not lost the ability to read.
So I pressed on:
That I already know. But do you have a legal opinion on what that means -- i.e. could it be overridden?
And under what circumstances would he not approve something to go to the people?
I got nowhere. It's not that I really blame the govermor. Why would he address a hypothetical before it becomes real when it very well may not? And why would he give me the benefit of his team's legal analysis, if he has indeed requested one?
It was worth the shot, though. Frankly, I hope it does come down to deciding that legal question, once again putting the state Supreme Court in the position to resolve a legislative money crisis.
The timing will be important, too. This will have to be resolved well before sine die. The later it is done, the more power the governor has to delay any resolution. And he surely will milk it for all it is worth, portraying it as him standing up for the taxpayers against a tax-crazed Legislature. I bet he is secretly thrilled Roberson moved the dialogue forward.
We haven't had the potential for something this wild since 2003. Ah, Independence Day in Carson City....