Over the last month or so, I have written a few articles about some folks in the Legislature taking issue with Governor Burgum over some vetoes and their desire to reconvene in an attempt to override them. Chief among the critics have been the majority leaders of both chambers– Rep. Al Carlson (R – District 41) and Senator Rich Wardner (R – District 37).
The two most recent articles I wrote on this subject have focused in part on the awkward nature of Rep. Carlson and Senator Wardner requesting an Attorney General’s opinion from Wayne Stenehjem – who was Governor Burgum’s opponent in the Republican Primary a year ago – about the constitutionality of the vetoes. All three men were categorized by Burgum as part of the “Good ‘ol Boys Club”. Thus leaving the impression with some that the potential of reconvening to override the vetoes would come across as political retribution.
When asked in an interview with Rob Port of the SayAnything Blog and the Rob (Re)Port yesterday about this idea of retribution, Wardner admitted that, “There might be some legislators who feel that way. I don’t.” It appears that Carlson and Wardner have accepted the reality that reconvening to use the spare three days the Legislature left themselves doesn’t make sense. Not only do they potentially need those three days in case their counterparts in Washington, DC do something with the healthcare issue, but word is that the votes aren’t there to override anyhow.
With Stenehjem’s opinion now in hand supporting Carlson and Wardner’s position that the Governor acted inappropriately in the manner in which he carried out some of the vetoes – and the idea of attempting an override apparently off the table – only one option remains. Steps are now being taken to sue Governor Burgum over the vetoes.
As a matter of spending, I have been a critic of Carlson and Wardner for wanting to override the vetoes. The state continues to see monthly shortfalls and the majority leaders just can’t seem to let go of some of the spending.
But I must admit there is something to be said for their argument against the Governor on the basis of separation of powers. It’s one thing for Burgum to veto an appropriation, but it’s quite another for him to veto specific wording that changes the intent of legislation. Doing so would be more legislative in nature than executive.
The strength of Carlson and Wardner’s position was best pointed out by Stenehjem when he quoted from a North Dakota Supreme Court decision in Link v. Olson:
“He may not veto conditions or restrictions on appropriations without vetoing the appropriation itself.”
All of this together explains why it appears Legislative Council is moving towards the law suit. Even if the majority leaders had the votes to override, doing so wouldn’t resolve the apparent separation of powers issue– which would have implications for future governors and legislatures. That can only be settled through the judicial system.
When I initially wrote about this issue over a month ago, reports were that the Legislature would not reconvene and it appeared Burgum had won. It now seems that assessment was premature. Because while it doesn’t appear an override will be attempted, the case against the Governor seems to be a strong one.
And while a win in the North Dakota Supreme Court would be a win for the separation of powers, it simultaneously means a loss for those who favor reductions in spending. A unique situation for sure.