The New Mexico Supreme Court heard oral arguments in the case that challenged the governor’s authority to issue public health orders.
The case regards Gov. Michelle Lujan Grisham’s public health order that effectively banned firearms in Bernalillo County, which was removed from the order a week later following a U.S. District Court ruling. The order now applies to playgrounds and parks.
The discussion was about how far the executive can go when issuing these public health orders and separation of powers.
Executive emergency powers allow governors to declare an emergency as a means to open up federal funding to help with the situation such as during wildfire and flood disasters when funds and other assistance can be made available through the Federal Emergency Management Agency.
Holly Agajanian, the governor’s chief general counsel, argued on behalf of Lujan Grisham and Health Secretary Patrick M Allen.
Agajanian said the executive orders were issued in September in order to open up funding and other resources in an effort to combat what Lujan Grisham terms “an epidemic” of gun violence and substance misuse.
Justice Brianna Zamora found this to be a broad explanation.
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“I think a lot of this could have been done without a public health order. But now that you’re telling me that the only way these things can be funded is with the public health order,” Zamora said. “If we construe it that broadly that the governor, under numerous circumstances, could declare something to be an emergency and decide how funding will be allocated, or what programs will be funded. They go well beyond this order, I mean, how do we put any I still don’t get the guardrails we put on if we allow this, what are we not allowing?”
An example would be that since DWI is a public health issue with 92 people killed in DWI vehicular homicides in 2023, according to Mothers against Drunk Driving, could this lead to prohibiting people from driving, Chief Justice C. Shannon Bacon proposed as a hypothetical.
Agajanian responded that, although the question was a fair one, she did not know what that limit was.
Bacon responded that there were two possible scenarios to determine what entity would establish executive boundaries for emergency powers: the first being that the legislature would be the entity to establish limits on executive emergency powers or if the state supreme court could do so.
But that would make the issue a separation of powers issue, Bacon said.
Jessica Hernandez represented the Republican House and Senate members, the state Republican and Libertarian parties, the National Rifle Association, several Bernalillo County residents including licensed firearm instructors, a firearms dealer and a former Albuquerque police chief.
Hernandez argued that Lujan Grisham’s emergency orders were invalid based on the state’s emergency statutes.
“The governor felt like she had to do something and so she chose to use a tool that, at least in COVID, she was able to use very extensively, like here, when you are getting into areas that are the police power that has traditionally and constitutionally been reserved to the legislature that is not an over delegation issue; that is… a separation of powers issue where the governor has chosen to invoke a statute that is meant to be used in very limited circumstances, but try to apply it to a very broad problem,” Hernandez said.
Hernandez argued that some of the provisions in the executive orders could be put in place through means other than an executive public health order.
Lujan Grisham does have the power to manage executive departments by advising or ordering them to do an act toward a goal, Hernandez said.
“For example, to tell the Department of Public Safety… to coordinate with Bernalillo County Sheriff and APD to arrest people with warrants,” Hernandez said.
The court did not rule on the case on Monday and will issue a decision at a later time.
