A lot of us among the uneducated hoi polloi found the original indictment of Rick Perry over the use of his veto powers to be silly and unlikely to do well in the courts. But at least in my case, I couldn’t quantify exactly why. It didn’t sound right, but I’m not a lawyer and the courts often get up to all manner of monkey business which makes no sense to me. But this week, constitutional scholar Eugene Volokh has done the hard work for the rest of us and identified three entirely separate reasons why this indictment isn’t worth the paper it’s printed on. Let’s take a quick look at each.

It Violates the Constitutional Doctrine of Separation of Powers

The Texas Constitution vests in the Governor the absolute authority to veto appropriations bills. See Tex. Const. art. IV, § 14. The Governor is entitled to decide which laws he “approv[es]” and which he disapproves — without any constraint from the Legislature, or from special prosecutors. Id.

The Texas Constitution also includes an explicit separation of powers provision that sets forth the structure of Texas government

Cannot Be Prosecuted for His Veto, Because He Is Entitled to Absolute Legislative Immunity for Any Exercise of His Veto Power

Legislative immunity is a common law doctrine that flows from the Speech or Debate Clauses of the Texas and U.S. Constitutions. See In re Perry, 60 S.W.3d 857, 859 (Tex. 2001) (citing U.S. Const. art. I, § 6; Tex. Const. art. III, § 21). It declares that “individuals acting in a legislative capacity are immune from liability for those actions.” Id.

The reason for this legislative immunity is simple, as the U.S. Supreme Court has explained, and the Texas Supreme Court has endorsed

Criminalizes Speech Protected by the First Amendment of the U.S. Constitution

Count II of the indictment alleges that Governor Perry violated the law by “threatening” to use his veto powers if a government official did not resign her post. But he has every right to do just that. Criminalizing Governor Perry’s threat to veto legislation violates his right to freedom of speech under the Texas and U.S. Constitutions. This Count must also be dismissed.

A political official has the right to threaten to engage in an official act in order to persuade another government official to engage in some other official act. That is not a crime — it is core political speech. See, e.g., Watts v. United States, 394 U.S. 705, 707 (1969) (“What is a threat must be distinguished from what is constitutionally protected speech.”).

For those of you with the skill to navigate the terminology I’ve included links to each of the three articles. In each you will find links to the pdf files of the full briefs which Volokh has filed in the case.

I’m still not up to the task of translating all of this, but from the brief summaries he provides, one thing seems apparent. The unwashed masses may have had this one right from the very beginning in at least one regard. How can you take the Governor to court for performing a function of the job which is specifically spelled out in his duties? In Volokh’s learned opinion, you still can’t.