NM lawmakers weigh legal options in spending dispute

The New Mexico State Capitol in January last year. (Eddie Moore/Albuquerque Journal)

Copyright © 2021 Albuquerque Journal

SANTA FE – The debate over whether Gov. Michelle Lujan Grisham can allocate federal stimulus funding without legislative approval may move from the Roundhouse to the courthouse.

As the push for an emergency legislative session founders – falling far short of the required three-fifths majority required – Republican lawmakers are asking the attorney general for a legal opinion outlining whether Lujan Grisham, a Democrat, is empowered to spend about $1.75 billion in federal stimulus funding.

The governor’s administration may also face a legal challenge from a Democrat. State Sen. Jacob Candelaria, an Albuquerque lawyer, said this week that his office is preparing a lawsuit if lawmakers don’t succeed in calling themselves into session to take up the federal stimulus spending.

The suit would aim to “stop the governor from illegally and unconstitutionally spending these funds absent legislative appropriation,” Candelaria said in a tweet.

Lujan Grisham, for her part, contends the law is clear – that allocating federal funds is within the purview of the executive branch of government, not a legislative function. Her administration has cited court cases to back up that contention.

The debate over next steps – legal or otherwise – comes after a petition by House Minority Whip Rod Montoya, R-Farmington, failed to gather enough support from lawmakers to call themselves into an “extraordinary session,” as the state Constitution calls it.

The proposal drew strong Republican support but only two Democratic legislators – Sens. Candelaria and Gerald Ortiz y Pino, both of Albuquerque – signed the certificate calling for a legislative session by Thursday, the target date set by Republican leaders.

Democrats hold decisive majorities in both legislative chambers.

In an interview, Ortiz y Pino said he believes an extraordinary session is the appropriate procedure for lawmakers to assert their authority over spending.

“Just because it’s a Democratic (administration) doesn’t mean we shouldn’t challenge when an executive oversteps their authority,” he said.

Montoya, for his part, said Attorney General Hector Balderas, a Democrat, should weigh in with a legal opinion, given the magnitude of the money at stake and precedent for future governors.

Matt Baca, chief counsel for the attorney general, confirmed the office received the request for a legal opinion.

The $1.75 billion at stake, Montoya said, is equal to almost one-fourth of the state’s $7.4 billion general fund spending this year, and legislators should help shape its spending.

“A lawsuit is definitely an option and is under consideration,” he said.

Democratic and Republican lawmakers alike have questioned Lujan Grisham’s authority to allocate federal stimulus funding without an appropriation approved by the Legislature. But they have not agreed on how to respond.

Lujan Grisham has consulted with lawmakers informally on how to spend the money, but she also has acted on her own and vetoed budget language intended to determine how some of the federal money is spent.

In some cases, she and lawmakers have agreed on where to apply the money – replenishing a fund for unemployment insurance, for example – though Lujan Grisham maintains the authority to decide is hers, not the Legislature’s.

The governor’s administration has tapped federal stimulus funds to pay for a return-to-work program for residents receiving unemployment benefits, lottery awards for COVID-19 vaccination and for the unemployment fund.

Lujan Grisham spokeswoman Nora Meyers Sackett said Friday that the administration doesn’t comment on pending litigation or “supposed plans of litigation.”

In a statement last month, Sackett said the state Supreme Court has ruled that “federal contributions are not a proper subject of the Legislature’s appropriative power, and that the Legislature’s attempt to control the use of such funds infringes ‘the executive function of administration,'” citing two cases.

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