House Government, Elections and Indian Affairs Committee to Discuss HJR305 to Limit Governors Authority

As the New Mexico legislative session goes into its final day's lawmakers in the House Government, Elections and Indian Affairs Committee are scheduled to discuss a piece of legislation that would ask New Mexico voters to put more limits on the governor’s ability to declare emergencies on Monday 2/7/24.

House Joint Resolution 8, sponsored by five Republican lawmakers, proposes an amendment to the New Mexico Constitution limiting the governor’s ability to extend emergency declarations beyond 90 days without approval by three-fifth of the state’s lawmakers.

The New Mexico House Republican Caucus announced in a press release that all 25 members of its members have signed onto a House Joint Resolution. If approved by both legislative chambers, the proposed amendment to the New Mexico Constitution would go before voters for consideration in the next statewide election.

Because it is a proposed constitutional amendment and not a bill, it does not require the signature of Gov. Michelle Lujan Grisham, a Democrat who has opposed similar past attempts.

House Joint Resolution (“HJR”) 8 proposes a constitutional amendment aimed at curtailing the emergency powers of the governor. It proposes to add a new section to Article 4 of the New Mexico Constitution, providing for the following:

 Generally, this bill declares that a state of emergency declared by the governor expires after 90 days unless the governor calls a special session to address the circumstances of the emergency. The special session must convene within 90 days.

This bill provides that a state of emergency declared by the governor may only be extended by joint resolution upon a 3/5 vote of both chambers of the Legislature. The bill provides that the governor may call the Legislature into a special session to consider additional extensions.

This bill provides the Legislature with the power to call itself into an extraordinary session, pursuant Article 4, § 6, if the governor declares a state of emergency. At the extraordinary session, the Legislature is given the power to restrict, suspend, or terminate the state of emergency by a 3/5 vote by both chambers.

Finally, this bill provides that the governor may only declare one state of emergency for “an event” and that any effort to declare a further emergency for the same event requires prior consent from the Legislature.

The fiscal implications of this resolution are not yet clear. If the resolution were to pass, then it would be presented to the voters of New Mexico, most likely at the next general election in November. 

Then, it would only have any effect in the event of an emergency. 

The resolution does not create any revenue sources or appropriations, so there are no direct fiscal implications.

The indirect fiscal implications, which could be substantial, would depend on the nature of the emergency. The limitation on the duration of an emergency would likely to save the state money in the short term, as the governor is given substantial spending powers. However, given that special sessions would likely be required, perhaps under fairly difficult situations, this would be an additional expense incurred by the state. 

Moreover, if an emergency were to be cancelled prematurely, the hazardous event would likely have a greater impact on the economy of the state, which would result in a net loss of revenue.

Parts of this bill are inconsistent with existing procedures governing emergency declarations by the governor. For example, NMSA 1978, § 12-10A-5(D) (2003) provides that a declared public health emergency shall be terminated by the governor or automatically after 30 days unless extended by the governor. 

As another example, NMSA 1978, § 12-12-5 (1980) provides that the governor has the sole power to terminate a declared energy emergency or energy supply emergency. 

Because this bill amends the Constitution, if enacted, it would supersede existing statutory law. However, litigation may be required to establish the constitutional supremacy.

This proposed amendment would transfer a substantial amount of responsibility for the continuation and modification of states of emergencies from the governor to the legislature.

The legislation is endorsed by all members of the House Republicans of the New Mexico legislature in an effort to reign in Governor Lujan. Opponents said, in part during court challenges to Lujan's emergency health order that this is not how lawmakers intended that emergency power be used; attorneys pointed out the difference between this health order and the ones issued during COVID lockdowns.

In a press release, House Republicans said the measure is needed to ensure the legislative branch plays a role in protracted emergencies and constrains what they say is unchecked executive power.

“It's time we ensure that checks and balances remain a critical component of government, and we are committed to upholding our oath of office,” a joint statement by the New Mexico House Republicans contained in the press release said.

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