Divided NM Supreme Court upholds legality of governor's orders targeting guns, drugs

SANTA FE — A divided New Mexico Supreme Court ruled Thursday that emergency orders issued by Gov. Michelle Lujan Grisham in 2023 that targeted gun possession and drug abuse did not violate state law.

But the state’s highest court did strike down one provision in the governor’s order dealing with a juvenile justice initiative, describing it as an improper use of her police powers.

At the heart of the case, the 3-2 ruling by the Supreme Court found Lujan Grisham’s orders did not overstep a state law that grants governors broad powers in response to the “occurrence or immediate threat” of serious public emergencies.

Justices Brianna Zamora and Michael Vigil dissented with the court’s other three justices in the ruling, with Zamora saying the ratification of broad emergency executive powers could lead to misuse.

“While the governor’s desire to combat gun violence and drug abuse appears to be well-intended, there is nothing in the majority’s opinion that would restrict a future governor from taking actions that would be substantively more troubling,” Zamora wrote in her dissent.

However, Lujan Grisham spokesman Michael Coleman said the ruling affirmed the governor’s administration had acted within its legal authority in declaring gun violence and drug abuse as public health emergencies.

“The court has provided important clarity on the executive branch’s responsibilities during public health crises,” Coleman said in a Thursday statement.

“We appreciate the court’s thorough consideration of these important constitutional questions, and we remain focused on building safer, healthier communities across New Mexico,” he added.

Impact of Supreme Court’s ruling

The Supreme Court’s ruling is largely moot on a practical level, since Lujan Grisham’s emergency orders have either expired or been blocked in court.

But it could have a significant future impact by setting precedent regarding the extent — and limits — of the state executive branch’s use of emergency powers.

After the shooting of an 11-year-old boy in Albuquerque, the governor in September 2023 declared gun violence and drug abuse to be public health emergencies under a 2003 law.

Her administration then issued related orders banning the possession of firearms in public places in Albuquerque and Bernalillo County, and requiring the testing of wastewater at public schools to detect the possible presence of fentanyl and other drugs.

The order targeting firearms was quickly challenged in court and blocked by a federal judge, prompting Lujan Grisham to issue an amended order prohibiting guns in parks and playgrounds.

That order expired in October 2024 and was not renewed.

But the emergency orders were also challenged in state court by a large number of plaintiffs that included the state Republican Party, GOP legislators, the state Libertarian Party and the National Rifle Association.

In response to the Supreme Court’s ruling, state Republican Party Chairwoman Amy Barela said Thursday the governor’s emergency orders could be a harbinger of things to come.

“The dissenting justices’ warnings prove our point: without a check on this power, what’s next?” Barela said in a statement.

“Will a future Democratic governor declare an ‘emergency’ over climate change to seize property? Ban free speech to combat ‘misinformation’? The majority’s ruling says they can — and Democrats will,” Barela added. “Governor Lujan Grisham’s actions are just the beginning.”

Broad scope of emergency powers

The 2003 law the governor issued her emergency orders under, the state Public Health Emergency Response Act, was enacted after the 2001 anthrax attacks and the terrorist attacks of Sept. 11, 2001.

It was used sparingly by New Mexico governors until the start of the COVID-19 pandemic, when Lujan Grisham invoked it to order nonessential businesses to close and limit public gatherings.

Over the last five years, some legislators have proposed bills to curb the governor’s executive powers, but none of those measures have advanced to Lujan Grisham’s desk after she vowed to veto them.

Since declaring the COVID-19 pandemic a public health emergency in March 2020, Lujan Grisham’s administration extended the emergency order more than 30 times and issued multiple related health orders.