N.M. lawmakers consider taking governor to court over budget vetoes

Apr. 29—A showdown is brewing between New Mexico lawmakers and Gov. Michelle Lujan Grisham over which branch of government has the authority to appropriate federal funds.

During Thursday's Legislative Finance Committee meeting, legislators discussed the possibility of taking Gov. Michelle Lujan Grisham to court to settle the long-running issue.

"It's important that we hone in on the fact that this is truly an issue of separation of power when it comes to legislative versus executive and the power of the budget," said Rep. Patty Lundstrom, a Gallup Democrat who chairs the committee.

"We feel very strongly that that is a legislative responsibility for how those dollars are appropriated, and it's our role in our branch of government's role," she added.

The strife between the two branches of government comes after Lujan Grisham used her executive powers earlier this month to line-item veto over $1 billion in one-time expenditures for fiscal year 2022 that the state expects to receive in federal pandemic aid from the American Rescue Plan. In her veto message, the governor said she considered the appropriations an impermissible attempt by the Legislature to appropriate or control the allocation of federal funds, which some lawmakers and legislative staffers believe is incorrect.

"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,' " the governor wrote in her veto message, citing a 1974 court ruling.

Nora Meyers Sackett, the governor's press secretary, reiterated in an email the contention the executive branch is responsible for the appropriation of federal funds.

"What's more," she wrote, "without the governor's action, the cart would have been put entirely before the horse, given that New Mexico has not yet received any of these federal funds, nor have we been informed of how many allotments the funds will come in, nor have we yet received any guidance from the Treasury Department on how the funds may be spent — all details that surely state legislators would agree are critical to making such appropriations."

Sackett said the Governor's Office would welcome collaboration with the Legislature should lawmakers decide to engage "directly" with the administration.

Since the onset of the pandemic, the state has received $19.1 billion worth of money and services from the federal government. The pandemic relief aid has come in the form of direct payments to individuals, expanded unemployment benefits, Paycheck Protection Program loans and other business supports and increased federal share of Medicaid costs, among other categories, according to a report by Micaela Fischer, the Legislative Finance Committee's program evaluation manager.

"As time goes on, the total funding amount coming to New Mexico from these [federal stimulus funds] will continue to grow, particularly until the federally-expanded unemployment benefits, food assistance, and increased Medicaid match expire," the report states.

While Congress earmarked some of the funds for specific purposes, the money from the American Rescue Plan was granted to the state "generally," Fischer said.

"So, despite the vetoes, it's our contention that the logic states that the [American Rescue Plan] money needs to be deposited into the general fund by the state treasurer and the Legislature will need to appropriate it before it's spent out of the general fund," she said.

Sen. George Muñoz, also a Gallup Democrat, said the matter needs to be decided by the state Supreme Court.

"The Legislature and [the Legislative Council Service] need to take this up," said Muñoz, who serves as the committee's vice chairman. "If the council doesn't take it up, I think there's people that want to take it up privately. But the Legislature does have this purview to appropriate this money."

Rep. Dayan Hochman-Vigil, D-Albuquerque, said lawmakers need "further clarification and direction from the courts ... as to what our appropriation powers look like from the constitution."

"We need to set that precedent in order to help us better do our job," she said.

Charles Sallee, deputy director of the Legislative Finance Committee, warned lawmakers the executive would view the budget merely as an information item instead of a policy-setting document "if these kinds of vetoes continue to go unchallenged."

Lundstrom said his comment weighed heavily on her.

"I'm going to be asking at some point here for a show of hands from our voting members of, 'What do you think?' " she said. "I mean, at the end of the day, do we protect our branch of government? Do we protect our prerogative or don't we? But I'm not for turning this document into an information document by any means or just having a few words removed that completely changes the whole intention. There's just too much work that goes into this."

The committee is expected to take up the issue as its first order of business Friday.

Follow Daniel J. Chacón on Twitter @danieljchacon.

Follow Daniel J. Chacón on Twitter @danieljchacon.