Indigo Journal

Sanford Leave of Absence Could Provoke Constitutional Showdown

Posted on 02. Jul, 2009 by Tim Kelly in SC Politics

Unlike some people, we give credit where it's due around here.

FITS is reporting that Undone Gov. Mark Sanford is floating the idea of taking a 60-day “leave of absence” to try to weather his personal storm and stem the tide of calls for his resignation. (It takes real talent to mix metaphors this way, suckers!)

Obviously, Sanford has already take a “leave of his senses absence,”so perhaps this is the next logical step.

Constitutionally, Sanford could pull this off. Article IV, Section 12 of the state constitution deals with “disability of the governor:”

(1) Whenever the Governor transmits to the President Pro Tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Lieutenant Governor as acting Governor.

(2) Whenever a majority of the Attorney General, the Secretary of State, the Comptroller General and the State Treasurer, or of such other body as the General Assembly may provide, transmits to the President Pro Tempore of the Senate and the Speaker of the House of Representatives a written declaration that the Governor is unable to discharge the powers and duties of his office, the Lieutenant Governor shall forthwith assume the powers and duties of the office as acting Governor.

Thereafter, if the Governor transmits to the President Pro Tempore of the Senate and the Speaker of the House of Representatives his written declaration that no such inability exists he shall forthwith resume the powers and duties of his office unless a majority of the above members or of such other body, whichever the case may be, transmits within four days to the President Pro Tempore of the Senate and the Speaker of the House of Representatives their written declaration that the Governor is unable to discharge the powers and duties of his office. Thereupon, the General Assembly shall forthwith consider and decide the issue, and if not in session it shall assemble within forty-eight hours for the sole purpose of deciding such issue. If the General Assembly, within twenty-one days, excluding Sundays, after the first day it meets to decide the issue, determines by two-thirds vote of each House that the Governor is unable to discharge the powers and duties of his office, the Lieutenant Governor shall continue to discharge the same as acting Governor; otherwise, the Governor shall resume the powers and duties of his office. (1972 (57) 3171; 1973 (58) 48.)

The risk for Sanford is that two-thirds of each legislative body decides he's not fit to return to duty in 60 days. I'm not clear on whether the legislature can call itself into session to impeach the governor, but they would certainly have an avenue to convene should Sanford take leave under this provision.

Something I had not considered before is section 2: that the Attorney General, Secretary of State, Comptroller General and Treasurer could declare Sanford unable to perform his duties.

We already know where Richard Eckstrom stands, and Henry McMaster would find himself in quite an uncomfortable position should someone attempt to use this avenue of further undoing the Undone Gov.

Sanford's people see treasurer Converse Chellis as a tool of the legislature, so one can imagine he wouldn't mind sticking a shiv in Sanford. 

Someone would have to remember who the Secretary of State is and then look up his phone number to get his vote. 

The other interesting part of that section is “…such other body as the General Assembly may provide.” Presumably, the legislature would have to do this by statute, but could, for instance, the Speaker, the Speaker Pro Tempore, the President Pro Tempore of the Senate and, say, the Senate Majority Leader decide to invoke this clause?

If so, the legislature could avoid impeachment – which requires a trial on “serious crimes or serious misconduct in office” – and simply decide the governor is “unable to discharge the powers and duties of his office” on whatever basis they decide.

And you thought the stimulus battle was a consitutional showdown.