The term “constitutional crisis” isn’t one that should be tossed around carelessly. And it might overstate the importance of the simmering dispute between Gov. Michelle Lujan Grisham and lawmakers of both political parties over who has authority to decide how to spend roughly $1.1 billion in unspent federal stimulus funding doled out by Washington, D.C., during the pandemic.
But if it is an overstatement, it’s not by much — and the term “constitutional emergency of generational importance” used by two state senators challenging the Democratic governor’s claim of unchecked authority over the money would seem to describe the situation just fine.
Sens. Greg Baca, R-Belen, and Jacob Candelaria, D-Albuquerque, have filed a petition with the state Supreme Court seeking to bar the governor from spending the money, arguing it should go through the legislative process. The court has set oral arguments for Nov. 17. State Treasurer Tim Eichenberg, also a Democrat, weighed into the legal dispute recently on the side of Baca and Candelaria. Eichenberg argued federal funds sent to the state that are not targeted for a particular program can only be appropriated by the Legislature.
“The founders’ clear intention was that legislative action is required before public funds can be spent,” his lawyer argued in court papers. The treasurer, who ultimately is responsible for receiving and depositing the federal dollars, believes there should be an open debate over how to spend the money, with the opportunity for public participation.
He’s absolutely correct. This money belongs to New Mexicans, and it should be appropriated by the lawmakers they elected to represent them in a process that allows the public to weigh in. Further, it’s not as though the governor has zero influence when it comes to dealing with a state House and Senate where her political party holds strong majorities.
While Baca and Candelaria have taken on the heavy lifting of a court challenge, a number of Republicans and other key Democrat legislators including Rep. Patricia Lundstrom, D-Gallup, and chair of the House Appropriations and Finance Committee, and Rep. Antonio “Moe” Maestas, D-Albuquerque, have been critical of the governor’s plan. Maestas, a lawyer, says spending the money without appropriation would be unconstitutional.
The governor already allocated $600 million of the $1.7 billion in stimulus money to shore up the state’s unemployment fund, which had been decimated by jobless claims during the ravages of COVID-19. OK. Hard to disagree with that, and lawmakers aren’t trying to roll that back.
But they are defending an important constitutional principle going forward — and the governor threw down the gauntlet by vetoing legislative appropriations of the stimulus dollars to things like highway repairs, $100 million for the lottery scholarship and $100 million to support local community economic opportunities.
The case is now before the state Supreme Court. In court filings the governor not only claims it is within her constitutional power as the executive to spend the federal money any way she sees fit, she argues the stimulus dollars are in a suspense fund (think temporary trust account) and not yet in the state treasury, which her lawyers say means the Legislature lacks the legal reach to earmark the money. If that sounds like a technicality, it’s because it is.
And no one should take comfort from the Governor’s Office having private talks with unspecified legislative leaders about how to spend the money. This state has seen enough backroom deals, and we don’t need one when it comes to how this $1.1 billion should be spent. The public should have every right to weigh in both in person and through their representatives in a legislative appropriations process.
Time will tell how the Supreme Court will parse the legalities. But it shouldn’t have to. The governor should acknowledge we have three branches of government and appropriating public money falls to the legislative branch.
This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.