January 14, 2022

Legislation aims to limit executive emergency powers

Matthew Reichbach

Thirty-day legislative sessions in New Mexico are typically reserved for budget issues, along with any special issues the governor asks lawmakers to consider. This year, besides the budget, legislators are expected to debate and vote on bills regarding public safety and education. But two lawmakers are hoping that at least one of their two bills to limit emergency powers of the executive branch gains at least some traction this year. 

House Joint Resolution 3 and House Bill 40 both aim to limit the amount of time a governor can maintain emergency orders without a say from legislators. Both pieces of legislation are sponsored by Rep. Daymon Ely, D-Corrales, and Rep. Greg Nibert, R-Roswell. One major difference between the two is that the joint resolution would not require Gov. Michelle Lujan Grisham’s approval, as it is a proposed constitutional amendment. 

Ely and Nibert can usually be found on opposite sides of most issues, but in this case, they seem to have found common ground in wanting to give some power back to the Legislature. In the early 2000s, after 9/11 and a nationwide anthrax scare, the New Mexico Legislature approved legislation that gave a majority of emergency decision-making powers to the governor’s office. 

Now, both Ely and Nibert say it’s time to give that power back, at least partially, to the Legislature. Both proposals would allow a governor to unilaterally issue emergency orders, but only for a limited amount of time before calling lawmakers into a special legislative session to decide whether or not to extend the orders. Republicans have largely criticized Lujan Grisham for her emergency health orders amid the COVID-19 pandemic. But Ely told NM Political Report that he is not only happy with Lujan Grisham’s handling of the pandemic but that she “is doing an excellent job.” 

“My view is she saved thousands of lives and got thousands of people out of the hospital,” Ely said. “Having said that, the Legislature, having nothing to do with the governor, gave away power 20 years ago. “They did not imagine that we would have an emergency that would go on for a long period of time.”    

Nibert, who is more critical of Lujan Grisham, said he doesn’t think lawmakers have been adequately updated by the governor’s office state health officials during the COVID-19 pandemic. He said he believes that if lawmakers had a role in emergency order decision-making, individual legislators could better explain those decisions to their respective constituents. 

“It would force that interaction between the two branches of government that I think would be healthy,” Nibert said. “Then I could come back to my community and explain why certain things are happening, or why certain things are important [and] why it’s necessary for our community to get on board with this or that.”

Nibert asserted that lawmakers have been “blind” through most of the pandemic with no legislative updates from Health and Human Services Secretary Dr. David Scrase. And while Ely disagreed with that sentiment and countered that lawmakers “certainly can pick up the phone” for updates, he agrees that there should be more collaboration. 

“We’re not blind, but we’re also not collaborating,” Ely said. “The Legislature and the governor, if the [state] constitution was written correctly, should be working together and sometimes opposing each other. That’s our system.”

While Nibert generally disagrees with Lujan Grisham’s political stances and policies, he said his intention is not personal.  

“This issue really is not to criticize the governor, it is merely an effort to try to have a seat at the table on these extended emergencies,” Nibert said. 

If lawmakers collectively decide to advance either proposal, their best bet is to push the constitutional amendment as Lujan Grisham’s office has signaled that the House bill will not be added to the call and the governor would likely issue a veto if it made it to her desk. 

Lujan Grisham spokesperson Nora Meyers Sackett said the current structure of the Legislature would make it hard to act quickly in emergencies.  

“Nationwide, we have seen clearly that states have benefited from being able to take immediate action to manage the pandemic, including New Mexico,” Meyers Sackett said. “There is no question that the executive’s ability to respond quickly over the course of the pandemic has saved lives. It’s also worth pointing out that with a part-time legislature that convenes regularly only once a year, it is difficult to conceive of the benefit of restricting an executive’s authority to respond with speed to protect New Mexicans in an emergency.”

Both pieces of legislation would require the governor to call a special session to extend emergency orders beyond 60 or 90 days, respectively. At about $50,000 a day, special sessions can be costly and can be logistically difficult, but Lujan Grisham has called four special sessions in the three years she’s been in office. 

Both Ely and Nibert said they hope they can get their colleagues to approve either proposal, but neither sponsor is confident this is the year. Ely said 30-day sessions are already a tough landscape as there is a limited amount of time. 

“I’ll tell you what I tell everybody, on every bill, on every constitutional amendment, on every everything we’re talking about: ‘It’s a 30-day session, don’t count on it,’” Ely said.

Nibert said his focus will be on the constitutional amendment because out of the two proposals, it has the best chance. 

“I harbor no fantasy that [HB 40] is going to get across the finish line,” Nibert said. 

Nibert, who has been pushing for a change to the state’s emergency order protocol since 2020, said it’s important to keep pushing the issue regardless of its chances of passing.

“Ultimately, I think we will succeed in convincing the legislative branch of government to assume its rightful place at the table on these types of events,” Nibert said. “It may not be anytime soon, it may be in the future, but I think it’s an important discussion to have.”

Nibert added that as long as he is reelected this November, he will continue to push for the change, regardless of who is governor. 

“If in November, we see a Republican governor in the Roundhouse, I’ve committed to my constituents that this will be something I will continue to fight for because I believe it’s a separation of powers issue,” Nibert said. “It’s not anything other than that.”