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AG: Lawmakers’ spending control may not stand up in court

April 27, 2021 GMT

BISMARCK, N.D. (AP) — North Dakota’s attorney general said Tuesday that a bill that would give lawmakers more oversight over how federal funding is spent between legislation sessions might not stand up to a court challenge.

Leaders of the Republican-led Legislature signaled that they would try to override Gov. Doug Burgum’s veto of the bill, which Burgum said “clearly violates the separation of powers doctrine” and would be unconstitutional.

Attorney General Wayne Stenehjem told The Associated Press that the Republican governor was “well within his constitutional authority“ to veto the bill and that if the veto is overridden, he thinks the new law would be difficult to defend “from a constitutional aspect.”

The Senate voted unanimously Tuesday to override the veto. The House was expected to hold its vote on Wednesday.

The Legislature passed the bill in question after the state received $1.25 billion in federal coronavirus relief funding last year. The North Dakota Emergency Commission headed by Burgum largely determined how the money would be spent. The emergency commission includes the governor, secretary of state, Senate and House majority leaders, and chairmen of the Senate and House appropriations committees.

The bill also would allow the Legislature’s Budget Section to alter decisions made by the emergency commission. The Budget Section has 42 members, compared to the 141 members of the Legislature. It often meets between sessions to handle legislative business.

The vetoed measure would limit spending to $50 million by the emergency commission each two-year legislative cycle. It also would require the governor to call a special legislative session for expenditures above that.

Burgum said the $50 million “trigger” that would force the governor to call a special session would risk violating the state constitution by having the Legislature meet for more than the 80 days it’s allowed every two years.

It isn’t the first time that Burgum and the Legislature have clashed over spending authority. The Legislature two years ago overrode a Burgum veto on a bill that defined the authority of the budget section. Burgum argued that spending authority was improperly delegated to the group.

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A similar fight in 2017 ended up before the state Supreme Court, which agreed that the Legislature had ceded too much power to the budget section.

Stenehjem, who argued on Burgum’s behalf in the Supreme Court, said the current legislation would go beyond that 2017 ruling by allowing the budget section to amend an appropriation by a governor.