New Mexico GOP calls for 'extraordinary session' to limit governor's emergency powers

New Mexico Republican lawmakers sought to limit the governor’s emergency powers by calling for the Legislature to convene an extraordinary session in response to Gov. Michelle Lujan Grisham’s ongoing public health orders related to the COVID-19 pandemic.

Through a series of orders, Lujan Grisham sought to increase emergency spending during the pandemic while also placing limits on business operations to slow the spread of the virus.

This spring, she made separate allocations of $10 million and $20 million to aid in emergency response to the pandemic, a move that was criticized by Republican legislators for exceeding the governor’s statutory spending limit of $750,000.

As for the business restrictions, which demanded “non-essential” businesses such as restaurants cease indoor dining and other operations, Republicans said the moves were unfair to small business owners and could devastate New Mexico’s economy.

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State House Minority Leader Jim Townsend (R-54) said the Legislature should have been consulted on any decision the governor made during the pandemic, and legislation considered during the potential extraordinary session would seek to limit her powers and clarify the Legislature’s role in future decision making processes.

“No one is saying the governor shouldn’t have done something. There are laws on the books,” Townsend said. “She clearly acted outside her statutory authority. There are many people in and out of my district who are concerned about this.

“The equity of each branch has to be maintained.”

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During a special session called in June by Lujan Grisham to re-evaluate the state’s budget amid significant losses during the pandemic, legislation related to law enforcement reform was also taken up.

Townsend said he was disappointed that a proposal related to the governor’s emergency powers was not taken up, but he hoped the extraordinary session would prove a successful platform to try again.

“She had the right and responsibility as the governor to include the Legislature in the measures. She took it all by herself,” he said of Lujan Grisham. “That’s not how the system works. She broke the rules when she started acting like a queen instead of governor.”

Bipartisanship needed?

To call an extraordinary session, a three-fifths super majority is required by the Legislature. That means 26 senators and 42 representatives must vote in favor.

As of Thursday, 22 representatives and seven senators — all Republican — had signed on to the initiative

Both chambers of New Mexico’s legislative branch have strong Democrat majorities, but Townsend said he expects the measure to enjoy support across the aisle.

“I’ve had Democrats and Republicans and independents call and say this process isn’t right,” he said of the decision making for the health orders. “The law and prescribed measures are clear, and she didn’t follow any of it.

“I don’t care if Michelle Lujan Grisham is a Republican or Democrat; when the governor starts acting outside her authority, the Legislature must hold them accountable.”

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New Mexico Sen. Gregg Fulfer (R-41) said that bipartisanship was essential before he'd agree to sign on to calling the session. 

Fulfer said he worried that without support from Democrats, an extraordinary session could see the party giving more power to the governor and adding more state mandates. 

"If I don't see some Democrats joining us, we're in trouble up there," Fulfer said. "We'd be outnumbered. All they'll do is vote and give her (Lujan Grisham) more power. I think it could backfire.

"The Democrats would be just like usual, cramming their regulations down our throat."

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Instead Fulfer called for New Mexico conservatives to vote in the upcoming 2020 General Election so that the GOP could regain a majority in the Legislature. 

"The only way to make a real change is to get out and vote," he said. "We've got to get this back to being about the people."

Lawmakers question governor's authority

Nora Meyers Sackett, spokesperson for Lujan Grisham’s office, said state statutes enabled the governor to “act quickly” to provide aid or relief during emergencies and the health orders and spending were within the law under the All Hazards Emergency Management Act.

"The emergency appropriations provision gives the governor authority to appropriate larger amounts if the situation warrants it,” Meyers Sackett said. “Under the All Hazards Emergency Management Act, the governor has the duty to provide resources and services necessary to avoid or minimize harm in the event of an emergency — exactly what she has been doing.”

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In an Aug. 4 letter to New Mexico’s Legislative Council, Lujan Grisham contended that the dire nature of the pandemic warranted the emergency spending and health orders.

The letter was in response to a request from the council in July that the governor clarify the legal basis for her actions and spending during the pandemic.

“Because appropriations emanate from a power belonging exclusively to the legislature, Article 5, Section 4 of the Constitution of New Mexico does not appear to provide any authority for the executive to make broad emergency funding designations that exceed the appropriation levels set by the legislature,” the council’s request said.

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Attorney Thomas Hnasko, of Hinkle Shanor LLP, who acted as an outside counsel during a recent Legislative Council meeting, said lawmakers were entitled to more details about how the appropriation was spent, how much was left and if it was combined with any federal funds.

“It’s just a question of gathering more information. There’s some different interpretations," he said. “Obviously, we’re in an emergency. You don’t have the same communications because she needs to act fast.

“I don’t want to be overly critical of her response during a pandemic. She’s done a great job.”

Lujan Grisham defends authority

Lujan Grisham cited numerous state laws that allowed her to issue the funding in two executive orders, one of the $10 million expense and another of $20 million, rather than several capped at $750,000.

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She argued piecemealing the funding in separate $750,000 appropriations to the Department of Health would not give lawmakers anymore oversight or change the nature of the funding.

“Consistent with that objective, the pertinent statutes are absent of any express limitation on the amount that many be expended to assist New Mexicans in times of disaster,” Lujan Grisham wrote.

“The plain language of the provision is disjunctive; The governor may expend the $750,000 legislative appropriation or an unspecified amount of unappropriated money from general fund reserves.”

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The governor called lawmakers’ concerns about the spending “pedantic” and said she hoped the state could move forward with more pressing issued during the health crisis.

“In conclusion, I am puzzled by the Legislature’s interest in taking up a pedantic matter during the pendency of a once-in-a-lifetime health crisis, but I hope we can now move forward to address the many pressing substantive issues facing our state,” Lujan Grisham wrote.

Adrian Hedden can be reached at 575-628-5516, achedden@currentargus.com or @AdrianHedden on Twitter.