Concurring:
As explained below, I would hold that the petitioners in Edwards v. State are entitled to the declaratory relief that they seek, and therefore would not reach the merits of the issues raised in the South Carolina Association of School *98Administrators case. I do so because I believe that the Edwards case can be resolved without reaching the constitutional issues necessarily involved in the School litigation.
Petitioners Edwards and Williams (petitioners) seek a declaration that respondent Sanford (the Governor) must perform the actions required by the American Recovery and Reinvestment Act of 2009 (ARRA)7 to apply for the State Fiscal Stabilization (SFS) Funds available under that Act. I would grant the requested relief.
In enacting the ARRA, Congress, exercising its authority pursuant to the spending clause,8 provided two methods by which a state could express its desire to receive ARRA funds. Section 1607 of the ARRA is entitled “ADDITIONAL FUNDING DISTRIBUTION AND ASSURANCE OF APPROPRIATE USE OF FUNDS.” Under § 1607(a), entitled “CERTIFICATION BY GOVERNOR,” the ARRA provides “for funds provided to any State or agency thereof, the Governor of the State shall certify that: (1) the State will request and use funds provided by this Act----” In § 1607(b), entitled “ACCEPTANCE BY STATE LEGISLATURE,” the act provides “If funds provided ... in any division of this Act are not accepted for use by the Governor, then acceptance by the State legislature, by means of the adoption of a concurrent resolution, shall be sufficient to provide funding to such State.” As the legislative history makes clear, § 1607(b) was included in the ARRA in response to suggestions from the Governor that he was averse to accepting federal funds.
Under my reading of the ARRA, either a certification or a concurrent resolution is required in order for ARRA funds to be received by a state. Section 1607 vests the decision to exercise discretion first in the Governor, and then, as to any funds which he chooses not to accept, discretion vests in the General Assembly.
The Governor did provide a timely letter9 expressing his intent to accept ARRA funds, and his desire that the letter *99serve as his § 1607(a) certification. In this certification letter, however, the Governor stated that he was not applying for the SFS Funds, and expressed his “reservations about accepting these funds.”
In response to the Governor’s letter indicating that he was certifying but not accepting SFS Funds, the General Assembly exercised the discretion afforded it by § 1607(b) and enacted a concurrent resolution accepting the SFS Funds. Although the Governor argues that such a resolution does not have the force of law in this State, he misapprehends the purpose for which this resolution was passed: to exercise the discretion given the General Assembly under federal law to accept funds which the Governor had declined.
Here, we have a certification from the Governor under § 1607(a) which declines to accept the SFS Funds, followed by a concurrent resolution under § 1607(b) by which the General Assembly exercised its discretionary power to accept the SFS Funds.
The ARRA further requires that in order to receive SFS Funds, “the Governor of a State desiring to receive an allocation [of these funds] shall submit an application .... ” § 14005 (emphasis supplied). While there is some debate as to the proper grammatical construction of this statutory phrase, I conclude that § 14005 was drafted to accommodate the two methods, certification or concurrent resolution, by which a state can demonstrate that it desires SFS Funds. South Carolina has manifested its desire for SFS Funds through the concurrent resolution method provided for in § 1607(b). Once a state has expressed its desire to receive SFS funds through § 1607, it is my view that the state’s governor is obligated to obtain those funds by complying with the requirements in § 14005.
If a state expresses its desire to receive ARRA funds through a concurrent resolution, § 1607(c) of the ARRA then requires that “funding to the State will be for distribution to local governments, councils of government, public entities, and public-private entities within the State either by formula or at the State’s discretion.” Here, through the adoption of the annual appropriations act, the General Assembly has provided for the distribution of the SFS Funds and thus has met the mandate of § 1607(c). In short, South Carolina has fulfilled *100all the requirements set forth in federal law to demonstrate that it desires SFS Funds.
The Governor contends that the appropriations act offends the South Carolina Constitution’s separation of powers clause10 to the extent it purports to compel him to apply for the SFS Funds. As explained above, I read § 1607 to give the governor of a state or, under certain circumstances, its legislature, the authority to determine whether a state desires ARRA funds. Under my view of the ARRA, the Governor’s obligation to complete the SFS Funds application process found in § 14005 arises from the General Assembly’s compliance with the provisions of § 1607(b) and (c), and is not based upon the appropriations act itself. The appropriations act is relevant to my analysis only to the extent that it fulfills the requirement of § 1607(c). I perceive no separation of powers issue here.
Petitioners request the Court issue a declaratory judgment that, the General Assembly having fulfilled the requirements of § 1607(b) and (c), the Governor and the executive branch must perform any and all acts necessary for the State to receive SFS Funds from the federal government. I would grant this relief.
. Pub. L. 111-5 (Feb. 17, 2009).
. U.S. Const, art. I, § 8, cl. 1.
. Letter from the Governor to the Director of The Office of Management and Budget dated April 3, 2009.
. S.C. Const. art. I, § 8.