October 13, 2021

State treasurer says COVID-19 relief money should be governed by Legislature

The New Mexico state treasurer agrees that federal COVID-19 relief funds should be handled by the state Legislature and not the governor, according to a response filed on Tuesday by his attorney. 

Treasurer Tim Eichenberg was named as a party of interest in a case filed last month by state Sens. Jacob Candelaria, a Democrat, and Greg Baca, a Republican. Candelaria and Baca asked the New Mexico Supreme Court to order Gov. Michelle Lujan Grisham to stop appropriating any more money from the federal American Rescue Plan Act (ARPA) and to leave the rest of the spending decisions to the state Legislature. 

In a response on behalf of Eichenberg, his attorney wrote that while the ARPA funds can be spent legally on a variety of different issues, the Legislature should decide where it would be best spent. 

“The Treasurer respectfully submits that the question of whether some or all funds should be used for any or all of these areas requires considerations of public policy and public priorities that must be conducted in the open with opportunity for public participation, which can and will only happen in a legislative process,” the response reads. 

During the 2021 legislative session, lawmakers tried to include spending of the federal money in the state budget. Lujan Grisham line-item vetoed that appropriation on the grounds that a previous state supreme court case ruled that the spending of certain federal funds is the responsibility of the governor, not the legislature.  

In their initial petition to the state supreme court, Candelaria and Baca argued that the case Lujan Grisham cited in her veto message was narrowly focused on federal funds specifically designated for higher education. In this case, the two senators argued, the federal funds had a wide range of acceptable uses. 

Eichenberg’s lawyer also argued that Congress approved the relief money to be used in a wide variety of ways, “according to needs assessments made by state decision-makers, driven by state considerations, and priorities.”

And those decision-makers, Echineberg’s lawyer argued, are legislators. 

“Legislative action—the power to make law and appropriate money from the State Treasury—rests exclusively with the Legislature,” the response reads.

Lujan Grisham has spent some of the relief money on vaccination incentives, among other things. Her office did not respond to a request for comment.

In the initial petition, Candelaria and Baca did not ask the high court to order a reversal of Lujan Grisham’s spending but did ask for a stay to require that her office stop any further ARPA spending until the matter is settled in court. The state supreme court denied the motion to halt the spending, but agreed to entertain the case. The court asked Lujan Grisham’s office to respond by Friday.