Four Democratic state senators who chair some of the most influential committees in the Legislature filed a legal brief Wednesday in support of a lawsuit against Gov. Michelle Lujan Grisham that seeks to settle which branch of government has the authority to appropriate federal funds.
The state constitution is “unambiguous,” wrote the senators — George Muñoz of Gallup, Joe Cervantes of Las Cruces, and Jerry Ortiz y Pino and Daniel Ivey-Soto, both of Albuquerque — in the so-called amicus brief, filed in the New Mexico Supreme Court.
The constitution states “money shall be paid out of the treasury only upon appropriations made by the Legislature,” except interest or other payments on public debt.
“Our Constitution creates a separation of powers that vests the appropriation function primarily but not exclusively in the Legislature,” the document states. “Our Constitution also creates checks and balances among all three branches of government, so that no one branch can attain disproportionate power.”
The dispute over spending authority is long-running but resurfaced this year when Lujan Grisham used her executive powers in April to line-item veto more than $1 billion in one-time expenditures the state was expecting in federal pandemic aid. 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 disputed.
Now, the issue is in front of the state Supreme Court.
State Sen. Jacob Candelaria, D-Albuquerque, who filed the lawsuit against the governor alongside Greg Baca, R-Belen, said the four senators’ filing comes a week before the court is scheduled to hear oral arguments. State Treasurer Tim Eichenberg also sided with Candelaria and Baca in a written response ordered by the court.
“I think we’re going in with the wind at our back,” Candelaria said.
Nora Meyers Sackett, Lujan Grisham’s press secretary, reiterated what the Governor’s Office has said on the matter in the past.
“Courts have previously made clear the Legislature may appropriate state, not federal, funds,” she wrote in an email. “We have no further comment on pending litigation, and the Lujan Grisham administration looks forward to continuing to provide ongoing support for economic rejuvenation throughout the state.”
In their amicus brief, the senators wrote counsel for the governor “misconstrued” a previous court case, “as can be seen by actually reading the case rather than grabbing a few lines from it.” The senators also claimed the governor’s counsel advanced a “confusing and erroneous argument” in a brief filed Oct. 15. Her attorneys argued a “suspense fund” where federal relief funds are being held “is somehow separate from the state treasury,” the senators wrote.
“The ‘suspense’ argument is disproved by the very statute that the governor quotes in the brief,” they wrote. “How could the governor’s counsel misread the plain text of this statute? The statute says that all public money shall be paid into the state treasury.”
Candelaria said he “applauded” his colleagues for taking a stand on the issue. He noted the four senators chair the Senate’s finance, judiciary, rules and public affairs committees.
“I think it demonstrates that folks who have taken a serious look at this issue or have come to the same conclusion that New Mexico law is very simply and straightforward on this point, that when it comes to making decisions about how public money is going to be spent and what priorities that’s going to go to, that power rests with the Legislature and not the executive,” he said.
Candelaria said the case “has taken on new importance in the last several days,” with Congress passing a $1 trillion infrastructure package in which New Mexico is poised to receive at least
“This issue is going to keep arising, so I certainly look forward to receiving a decision from the Supreme Court,” he said, adding he expects an oral ruling from the bench next week, followed by a written opinion.