The tug of war between branches of government and the big ‘oops’

Earlier this legislative session, we wrote about the separation of powers and, specifically, the tug and pull as it relates to the legislature and the governor’s office during legislative sessions. The saga continues.

North Dakota’s Governor has line-item veto authority, but only in budget bills. While historically understood and managed judiciously, this has taken on a new, more confrontational flavor in recent years — so much so that the legislature felt it necessary to sue former Gov. Doug Burgum over some of his more creative use of the line-item veto pen.

The result was mixed, but one important abuse was settled as perhaps the most creative line-item veto attempt was struck down. The governor may not veto the purpose of an appropriation (where the money is going) and keep the appropriation (the spending of the money) for another purpose, which may suit a governor’s fancy more.

With the adjournment of this year’s legislative session came more line-item vetoes from the state’s new Governor, Kelly Armstrong. They bring the Separation of Powers debate back in spades. 

One such veto, for example, disallowed the legislature from determining by law, where in the Capitol the offices of the Legislative Council (the legislative branch’s only full-time staff) is housed. The governor apparently believes that the executive branch, instead, should make that determination. After all, it largely controls the sprawl of an ever-growing state government throughout the Capitol city in state-owned and state-rented space, not to mention a fair amount of it around the state. Some may think such an assertion appropriate, while others may view it as a violation of the Separation of Powers.

On the other hand, another line item veto may be viewed by many as an appropriate push back on the legislature attempting to shield its own in ethical matters. While the question of separation of powers could still be raised, one could view this as an appropriate check and balance, one branch against the other.

A third strikes the legislature’s assertion of its authority to change the name of a state park. This follows an agency in the executive branch actually changing such a name without legislative consultation or authority. The governor apparently believes this should be solely an executive branch decision, while the legislature believes the people’s elected representatives should have a say in such decisions, rather than only the government bureaucracy. 

Ironically, while many often criticize the overreaching bureaucracy of the federal government, the name of a National Game Reserve in North Dakota was recently changed — not by a federal government agency, but by an act of Congress (the legislative branch). Apparently, in this case, our state government’s bureaucracy’s overreach outdoes Washington’s.

The tug and pull will continue and enough blame rests with both branches. 

The legislature has long utilized a late budget bill as a “Christmas Tree” bill, laden with unrelated — often policy related — items, in some cases even inserting measures which the legislature had previously defeated or adding pet projects of leaders or influential legislators which would never have stood on their own merits, as separate bills. Beleaguered legislators, anxious to go home, are faced with an up or down vote on the entire bill — often a necessary state budget, resulting in its reluctant passage. 

For years, this was the OMB budget bill. The lawsuit in question struck that down, but the practice continues, simply using other budgets for the mischief instead.

The Legislature should stop such foolishness.

It should also plan, each session, for a “veto session”, as many states do, to allow the process to play out with respect to line item vetoes, giving the executive branch the veto power and the legislative branch the override authority the Constitution calls for — the appropriate check and balance.

Without a veto session, a Special Session is required to deal with last-minute line-item vetoes, and both branches are reluctant to call one.

The line-item veto was doubtlessly intended to allow governors to cut frivolous overspending by the legislature. Used that way, it’s a good thing. Used as an unbridled power grab by governors, it’s not.

Because they typically occur after the legislature has adjourned, line-item vetoes give an unfair advantage to the executive branch, as the legislature is no longer in town to take up the vetoes for potential override. The only solution is a special session. 

For most of North Dakota’s history, only the governor could call a special session, and the constitutional limit of 80 days for the legislature to meet did not come into play. Decades ago, the legislature passed a law giving it the authority to call itself into special session and overrode a governor’s veto to sustain it.

When it calls itself into special session, the legislature must be mindful of the day limit, as it then applies. For this reason, the legislature is usually careful to adjourn early enough to “save” a few days in the 80-day window to allow for the exercise of this power, if necessary. If the days are consumed only to consider a governor’s line-item vetoes, the legislature may forfeit its authority to reconvene to deal with an important issue during the interim.

The Big “Oops”

This year, one of the governor’s line-item vetoes apparently resulted in a major error. In attempting to veto the creation of a homelessness liaison position in a Native American-focused organization, as explained in his veto message to the legislature, he apparently mistakenly vetoed the entire section of the bill in which it resided, instead. The result? Funding for $35 million in homelessness programs was struck down.

It’s clear that this wasn’t the governor’s intention, so now what? 

Will he be forced to call a special session to ask the legislature to override his own veto? Stranger things have happened, and that remains to be seen, but things are never dull in the sport of North Dakota interbranch relations these days.