September 20, 2021

Two NM lawmakers ask state supreme court to give federal funding discretion to legislature

Andy Lyman

The New Mexico Supreme Court

In a move, not likely surprising to political insiders, a Democratic New Mexico state senator who has been a vocal critic of the governor joined one of his Republican colleagues in an attempt to block further spending of federal relief money. 

Sen. Jacob Candelaria, D-Albuquerque, along with Senate Minority Leader Greg Baca, R-Belen, filed a petition over the weekend with the New Mexico Supreme Court in an attempt to stop Gov. Michelle Lujan Grisham from further spending federal money without legislative input. 

In a statement, Candelaria said no one person should have the authority to handle federal funds sent to New Mexico. 

“When I became a senator almost a decade ago, I took an oath to defend the Constitution and laws of the state of New Mexico. We have filed this petition to halt the Governor’s unconstitutional efforts to usurp the Legislature’s appropriations power by claiming that she, and she alone, has the power to decide how billions of dollars in federal grant funds are spent,” Candelaria said. “In our country, no one is above the law and no one person should ever have the power to decide, unilaterally, how much people are taxed or how public money is spent.”

At issue is $1.75 billion of federal funds New Mexico received as part of the federal American Rescue Plan Act (ARPA). Some state lawmakers have repeatedly called for legislative control of federal stimulus money and during the regular 2021 legislative session, lawmakers attempted to appropriate money from ARPA in the state budget. Lujan Grisham issued a partial veto of that budget bill and cited a 1974 New Mexico Supreme Court case in her explanation for not giving the Legislature oversight in ARPA funds.  

“The Supreme Court of New Mexico has concluded that federal contributions are not a proper subject of the Legislature’s appropriative power, and the Legislature’s attempt to control the use of such funds infringes ‘the executive function of administration,’” Lujan Grisham wrote in her veto message. 

Part of that case, which was filed by then-Republican state Sen. William Sago, also involved federal appropriations. The state supreme court, in that case, ruled that the Legislature does not have the authority to appropriate federal funds earmarked for universities. 

“As already stated, our Legislature clearly has the power, and perhaps the duty, in appropriating State monies to consider the availability of Federal funds for certain purposes, but it has no power to appropriate and thereby endeavor to control the manner and extent of the use or expenditure of Federal funds made available to our institutions of higher learning,” New Mexico Supreme Court Justice LaFel Oman wrote. “Control over the expenditure of these funds rests with the Federal government and the Boards of Regents of the respective institutions.”

That state supreme court case also cited a Colorado Supreme Court decision that appropriation of federal money should be left to the governor. 

In Candelaria and Baca’s petition, the two lawmakers wrote that “Lujan Grisham has been less than forthcoming” when it comes to the legal basis for her office to handle federal money. But the petition does speculate and anticipate that Lujan Grisham’s office will respond by citing both state supreme court cases from the early 1970s. 

But in their petition, Candelaria and Baca wrote that it would be a mistake, arguing that the previous New Mexico Supreme Court case was narrowly focused on higher education. 

“Such a holding would be an anathema to the fundamental public policy of this state which vests the Legislature, the peoples’ elected representatives, with the power to appropriate public money,” the two senators wrote in the petition.