At Volokh Conspiracy, Eugene Volokh: Why the Gov. Rick Perry prosecution unconstitutionally intrudes on the gubernatorial veto power (concluding "so long as the constitution grants the governor the power to veto laws, I don’t think the legislature can criminalize such vetoes, and thus free itself from the constraints that the state Constitution imposes on it.").
I know nothing about Texas law, but I agree this is the right analysis under federal law. In my Constitutional Law course I routinely use the veto as an example of a power the President may excercise in the face of express congressional disapproval. And if Congress cannot directly prohibit a veto, likewise it should not be able to attach penalties to the use of a veto. As Professor Volokh says, the remedy for misuse of the veto (for personal gain, for example) is impeachment.
In this post, linked by Professor Volokh, Mike Dorf at Dorf on Law argues the opposite. In particular:
The indictment charges that Perry used what would otherwise be a perfectly legal tool for an illegal purpose, and thus committed unlawful acts. Once one thinks this through, one realizes that the defense Perry has thus far publicly mounted is inadequate. It would be as though someone who was charged with committing murder by deliberately running over his victim with his car protested: "But I have a license to operate a motor vehicle."
Well, no, it isn't like that at all, because the license to operate a motor vehicle isn't granted by the Constitution. The President's (or Governor's) constitutional authority can only be limited by other constitutional provisions.
(Professor Dorf get some pushback along these lines in the comments, and has some interesting responses).
Posted at 6:50 AM