Who blinked and what does it mean for the future?

The dust is settling, at least for now, in the standoff between the Legislature and the Governor on what we called The Big Oops — a veto error by the Governor which left in question the status of a line item veto after the Legislature adjourned.

Originally indicating a willingness to call the Legislature back into session for a day to address the error, Gov. Kelly Armstrong promptly retreated from that stance when the Attorney General issued an Opinion he’d requested, which was a thinly veiled defense of the Governor’s actions seeking to justify, rather than correct, them. We previously wrote about that, questioning who would decide the issue. Retreating even further, the Governor’s office sought to lobby against the sensible option by feigning worry about the $65,000 cost of a one day special session, despite the millions of dollars associated with the veto confusion.

In the aftermath of the debacle the Governor, of course, did not call the Legislature back to correct his error and the Legislature did not call itself back to do so, either. 

To fully understand the matter, it’s important to know that a governor may call the Legislature into special session at any time, for virtually any reason, without concern for how long it takes but, while the Legislature may also call itself back into special session, when it does so, each day counts against its Constitutional limit of 80 days in a two-year cycle.

Ultimately, the Legislature “blinked”

Ultimately, the Legislature “blinked” in the standoff because it, in effect, allowed the muddled veto to stand and (absent any action) the embarrassing Attorney General’s Opinion, which strained credulity, to be the last word on the issue…at least for now.

To its credit, however, that may not be the final word on the matter, as the Legislature is not completely ignoring the issue. The Interim Procedure and Arrangements Committee, which normally deals with rather sleepy technical matters of little note, is jumping into the fray to at least hopefully avoid such a problem in the future.

As we’d previously observed, the Legislative Council had done far more scholarly legal work in addressing the veto error and its aftermath than either the Governor’s office or the Attorney General, and it’s now reportedly presented a new proposal which would codify precedent and Supreme Court opinions on the matter to return some certainty and predictability to the process. The bill draft would restate what had not previously been in doubt — that the actual markings outlining a line item veto on a bill passed by the legislature, not accompanying letters, comments or documents — constitute the veto. 

Both the Attorney General’s Opinion and language by the Governor’s attorney in requesting it (which referred to the lined-out language in the actual veto merely as a “visual aid”) had turned years of Constitutional and historical understanding and court precedent on their head. They insisted, instead, upon trusting one of the two letters also submitted, which conflicted with the actual vetoed language in the bill and the other accompanying letter, which supported it. Of course, it led to a mess that only got messier.

If forwarded by the interim Committee and passed in the 2027 Legislative Session, the bill would clarify the veto process for governors and leave no question as to what actually constitutes the substance of a line item veto.

Legislative Council also reportedly proposed a solution to this type of problem in the future — a polling of legislators after each session adjourned to determine whether they’d all like to come back to deal with a governor’s veto(s). 

But such a solution would be convoluted, confusing and unpredictable, just as our citizen legislators are returning to their “normal” lives, jobs, businesses, and families. When would such a session be scheduled? How much advanced notice would be required? Questions, confusion and problems would abound.

A member of the Committee, however, reportedly suggested what we’d repeatedly advised and a bill reflecting it will be prepared for the Committee to consider and, hopefully, propose to the next legislative session.

We’d previously, repeatedly, strongly suggested that the North Dakota Legislature do what many other states do, to avoid the question of whether a special session should be called to deal with a gubernatorial veto and who should call it — simply plan for a veto session after each legislative session.

By planning for a single day, on a date certain, some brief number of days after its adjournment, the Legislature could routinely reserve its option to return to take up any governor’s vetoes upon which it decides to act. If no such concerns exist and no such action is required following a session’s adjournment, the veto session could simply be cancelled. This would be much easier to deal with than a nebulous, possible return at an unknown date, which would likely present many conflicts.

It’s actually a fairly simple solution which ensures that the checks and balances built into our bicameral system of government are protected and operate — no small matter in our Constitutional republic. The people of North Dakota should be pleased that such a solution may be in the works and that those they elect to represent them may take action to set it in place…stay tuned.