Who will decide?

—Interbranch tug of war over Governor’s veto error

The tension between two branches of state government is on full display in North Dakota.

What we earlier dubbed “The Big Oops” has caused tensions to rise, proverbial shots across the bow to be fired and the question of who will decide the matter up in the air.

Just after the 2025 North Dakota Legislative Session concluded, Gov. Kelly Armstrong exercised his line-item veto authority in appropriation bills for the first time, as the state’s new Governor. Some of the vetoes were appropriate because of the ill-advised legislative practice of attempting to slip policy changes — even some contrary to its previous actions in stand-alone bills — into such “Christmas Tree” bills late in a session. One, in particular, however, raised broad concern as the Governor, obviously and admittedly, made an error in what was actually stricken from a bill vs. what he articulated in his veto message was the intent of the veto (“The Big Oops”).

We raised the question, at the time, of how this would be resolved, laying out the obvious options — the Governor could call the Legislature back for a Special Session or the Legislature could call itself back into Special Session. Of course, the matter could also be settled in court but, hopefully, neither side would find this the preferable option.

The Governor’s attorney has apparently raised a third option — simply ignore it and accept what the Governor intended, rather than correcting what he actually did. Reportedly calling the line-item veto — the actual striking of language from a piece of legislation — a mere “visual aid”, the Governor’s office appears to favor simply overlooking the error and allowing the Governor’s intent to carry the day. That sounds expeditious but raises serious questions about what it could portend for the future, as a Legislative Council attorney pointed out when asked for an opinion on the matter.

Could this lead to endless wrangling about the meaning or intent of gubernatorial line-item vetoes, colored by the interpretation of the narrative of a veto message and alleging that such messages could supersede the actual language vetoed? Would arguments ensue about how to apply them? Would this field day for lawyers lead to endless court challenges — not merely between the legislative and executive branches of government but also, foreseeably, by those affected by such vetoes?

To simply be satisfied with the “forget what I did; look at what I meant to do” argument raises endless questions, problems, and ambiguity.

A Chess Match?

There may be a chess match, of sorts, afoot between the branches, as evidenced by both actions and comments.

The request for an attorney general’s opinion by the Governor’s office essentially opined that the error should be ignored and the intent should be implemented. The Legislative Council has rendered its own, seemingly reasonable assessment that the error simply needs to be corrected and that the obvious way to do so is through a Special Session of the Legislature and the Governor has reportedly stated that he’ll call a Special Session, if necessary.

Enter the Attorney General, opining prior to his official opinion, that the Legislative Council should simply butt out. Does this suggest that the Legislative Branch’s attorneys should refrain from advising or rendering their best legal judgment for the Legislature, when asked to do so, whenever an AG’s opinion on the matter has been requested?

Of course, the natural tensions between the branches of Government (which we recently wrote about) are at play, as is the specific question of how to solve the problem at hand.

The Governor’s attorney (ironically, a former Legislative Council attorney) has clearly taken his position favoring the Governor’s office, and the Legislative Council attorney (equally ironically, a former Executive Branch attorney) has clearly advised the Legislature that it should act to resolve the matter (objectively, the most sound approach). But now, the Attorney General, by his utterance — perhaps foreshadowing a bias for the branch in which his office resides — has also appeared to attempt to set the stage for the profundity and supremacy of his impending opinion.

The Attorney General will doubtlessly profess, as most AG opinions do, that his opinion shall govern unless and until decided differently by a court. While this deference has generally been given to AG opinions, many have struggled to find any such breadth of authority for attorney general’s opinions actually stated in the law or Constitution.

What’s next?

If the Attorney General’s Opinion indicates that the Governor’s intent should somehow take precedence over his action, would the Legislature be forced to go to court to clarify the matter? That would lead to more needless wrangling, delays and more cost to the taxpayers.

The best result for the people of North Dakota would be a clear one, which can only be rendered by legislative or court action. Hopefully, cooperation will result in the former course, making the latter unnecessary.

This could all have been avoided if the Legislature simply planned for a regular veto session at the close of each legislative session, as many states do. Hopefully, it will consider making this a regular practice to avoid such problems in the future.