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    This is a letter written by Gov. Josh Shapiro's general counsel to House Democrats' counsel discussing the lack of enabling legislation to implement the targeted voucher program.

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    Letter regarding PASS program

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    This is a letter written by Gov. Josh Shapiro's general counsel to House Democrats' counsel discussing the lack of enabling legislation to implement the targeted voucher program.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Flag for inappropriate content
    Download as pdf or txt
    6K views3 pages

    Letter Regarding PASS Program

    Uploaded by

    PennLive
    This is a letter written by Gov. Josh Shapiro's general counsel to House Democrats' counsel discussing the lack of enabling legislation to implement the targeted voucher program.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Flag for inappropriate content
    Download as pdf or txt
    of 3

    July 3, 2023

    Tara Hazelwood
    Chief Counsel
    Pennsylvania House of Representatives
    Democratic Office of Chief Counsel
    620 Main Capitol
    Harrisburg, PA 17120

    Dear Chief Counsel Hazelwood,

    Following the failure of House Bill 479 (HB 479) to be reported from Committee on June
    30, 2023, together with the remarks of House Majority Leadership indicating that the House will
    not vote on HB 479, a bill establishing the Pennsylvania Award for Student Success Scholarship
    Program (“PASS”), I write regarding the question of whether the $100 million appropriation for
    “PASS” contained in HB 611 may be implemented if corresponding legislative language enabling
    the appropriation fails to pass.1
    Answer
    The answer is no, PASS cannot and will not be implemented without additional enabling
    legislation. (**This letter is limited to this specific line-item appropriation and should not be used
    for any other purpose.)
    General Appropriation Act and Fiscal Code Generally
    In Hospital and Healthsystem Association of PA (HAP) v. Department of Public Welfare,
    HAP challenged the constitutionality of certain language in the General Appropriation Act of 2002
    (2022 GAA). 888 A.2d. 601 (Pa. 2005). HAP asserted that the 2002 GAA violated Article III,
    Section 11 of the Pennsylvania Constitution because it contained substantive language.
    Article III, Section 11 of the Pennsylvania Constitution restricts the scope of a general
    appropriation bill as follows: “The general appropriation bill shall embrace nothing but
    appropriations for the executive, legislative and judicial departments of the Commonwealth, for
    the public debt and for public schools. All other appropriations shall be made by separate bills,
    each embracing but one subject.”
    In analyzing whether the 2002 GAA language violated Article III, Section 11 of the
    Pennsylvania Constitution, the Supreme Court adopted a three-part test that had been used
    previously by the Commonwealth Court in Biles v. DPW, 403 A.2d 1341 (Pa. Cmwlth. 1979). For
    language to be constitutional under the Biles test, the language must:
    1. Be germane to the appropriation;
    2. Not conflict with existing law; and
    3. Not extend beyond the life of the applicable appropriations bill.
    The Pennsylvania Supreme Court in HAP held that the challenged 2002 GAA language
    was substantive language that violated Article III, Section 11 of the Pennsylvania Constitution.

    1
    It is important to note that while HB 479 established the program to begin in the 2024-2025 fiscal year, the
    program appropriation contained in HB 611 is for the 2023-2024 fiscal year.
    Notice: This memo and the information contained within is intended for internal use only. To the extent it is shared
    with other parties it may only be relied on for general informational purposes.
    The Court further held that the Legislature had the authority to alter the substantive language, and
    “the proper way to do so would have been through a separate enactment for the legislature's full
    and focused consideration pursuant to the requirements of the Constitution.” HAP at 616; see also
    Common Cause v. Commonwealth, 668 A.2d 190 (Pa. Cmwlth. 1995) (providing that the
    Legislature is free to appropriate, subject to the constitutional procedures and prohibitions, and is
    also free to legislatively determine, through substantive legislation, the purposes to which
    appropriated funds are to be devoted).
    Since the HAP case, the Legislature has typically utilized the Fiscal Code, or other enabling
    legislation to implement appropriations. The Pennsylvania Courts have defined "appropriation"
    as a sum of money that the Legislature designates for a particular public purpose. Jubelirer v.
    Rendell, 953 A.2d 514, 532 (Pa. 2008). The Fiscal Code defines the powers and duties of the
    executive branch regarding the collection of all monies due to the Commonwealth and the
    "disbursement or other disposition of all funds" belonging to the Commonwealth. 72 P.S. § 2.
    Historically, the Pennsylvania Courts have found the relationship between the General
    Appropriations Act and the Fiscal Code to be interdependent.
    Following the HAP holding, to meet constitutional muster, the Legislature must pass a
    separate enactment containing substantive language to implement the PASS appropriation. The
    Legislature should determine in what form that should proceed, albeit in the Fiscal Code, or
    another piece of legislation.
    Non-delegation Doctrine
    In addition to the issues raised above, if the Pennsylvania Department of Education (PDE)
    attempted to establish the PASS program without enabling legislation, such action would likely
    violate the non-delegation doctrine. The non-delegation doctrine, a corollary to the text of Article
    II, Section 1 of the Pennsylvania Constitution, provides that the General Assembly cannot delegate
    to any other branch of government the power to make law. Blackwell v. State Ethics Comm’n, 567
    A.2d 630, 636-637 (Pa. 1988). However, it may “confer authority and discretion in connection
    with the execution of the law; it may establish primary standards and impose upon others the duty
    to carry out the declared legislative policy in accordance with the general provisions of the act.”
    Gilligan v. Pa. Horse Racing Comm'n, 422 A.2d 487, 489, (Pa. 1980) (citing Belovsky v.
    Redevelopment Authority, 54 A.2d 277, 284 (Pa. 1947)).
    The principal limitations on this power are twofold: (1) the basic policy choices must be
    made by the General Assembly. William Penn Parking Garage, Inc. v. City of Pittsburgh, 346
    A.2d 269, 291 (Pa. 1975); and (2) the legislation must contain adequate standards which will guide
    and restrain the exercise of the delegated administrative functions. Chartiers Valley Joint School
    District v. County Board of School Directors, 211 A.2d 487, 493 (Pa. 1965). These constraints
    ensure that duly authorized and politically responsible officials make all of the necessary policy
    decisions, and it protects against the arbitrary exercise of unnecessary and uncontrolled
    discretionary power. Protz v. Workers’ Comp. Appeal Bd., 161 A.3d 827, 832 (Pa. 2017).
    Without enabling legislation, the General Assembly has made no basic policy choice, and
    there are no standards to guide PDE in the administration of such a program. Furthermore, there
    is nothing in the School Code or any other law that would confer PDE with such broad authority
    to create such a program. Therefore, without additional statutory authority for PDE to create the
    PASS program, there would be no authority for PDE to utilize the money from that line item to
    create such a program.
    Notice: This memo and the information contained within is intended for internal use only. To the extent it is shared
    with other parties it may only be relied on for general informational purposes.
    House Bill 611
    Were the House of Representatives to pass HB 611 (Harris) in its current form, the
    Administration would only be able to implement those line items for which there is an existing
    statutory authorization. The $100 million appropriation for the PASS program is a new line item
    in this year’s budget. PDE does not have existing statutory authority to stand-up a new scholarship
    program. Without corresponding legislative language enabling the program, the Administration
    lacks sufficient statutory authority to implement the PASS program. Accordingly, the
    appropriation for this purpose would sit idle in a Treasury account.
    In addition, the line item would not be able to be used for any other purpose. Article III,
    Section 24 of the Pennsylvania Constitution provides that “no money shall be paid out of the
    Treasury, except on appropriations made by law.” Courts have interpreted this provision to mean
    that the executive branch may not “use funds appropriated for one program in carrying out another
    and may not spend on a program more than its designated amount.” Shapp v. Sloan, 391 A.2d 604
    (Pa. 1978).
    This response should not be construed as an official legal opinion offered to, or on behalf
    of the PA House of Representatives. If you would like to discuss further, please contact me
    directly.

    Sincerely,

    Jennifer C. Selber

    Notice: This memo and the information contained within is intended for internal use only. To the extent it is shared
    with other parties it may only be relied on for general informational purposes.

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