Gov. Eric Holcomb, the Legislature and now the attorney general are locked in an unfortunate and unnecessary power struggle over who has authority during state emergencies, a clash that is likely to end up in the Indiana Supreme Court.
It’s a battle that raises questions about the constitutional divisions of power among the state’s branches of government. But it also represents a split in the Indiana Republican Party that bubbled up when Gov. Eric Holcomb took dramatic steps to shutter stores, offices and public gatherings in an attempt to slow the spread of COVID-19.
While legislative leaders never publicly questioned the steps Holcomb and the Indiana State Department of Health took to manage the pandemic, a few of the more conservative members of the majority caucuses said the shutdowns were unnecessary and detrimental. And when lawmakers convened for their 2021 session, the Republicans approved a bill that would essentially let lawmakers call themselves into special session and curtail the governor’s powers during state emergencies.
Holcomb vetoed the measure on April 9, saying “a central part of this bill is unconstitutional.” Six days later, the House and Senate overrode that veto, something they can do with a simple majority vote. Now, Holcomb has filed a lawsuit (which Attorney General Todd Rokita, also a Republican, has suggested Holcomb doesn’t have the authority to do), asking a judge to declare the law unconstitutional and block it.
At issue are two provisions in the Indiana Constitution—one that gives the governor the power to call the Legislature into a special session and a second that calls for the separation of powers between the legislative and executive branches.
“The right and authority to call a special session is clearly, unequivocally, and exclusively a function of the governor,” Holcomb says in his suit. “As such, neither the General Assembly nor the Legislative Council can exercise this function since the Indiana Constitution does not expressly allow for it.”
We agree with Holcomb, and we’re not swayed that the Legislature tried to get around the Constitution by using the term “emergency session” rather than “special session.” A judge will see right through that, and we suspect legislative leaders know it. Still, they allowed votes on a bill destined for costly and disruptive legal action.
We have supported Holcomb’s handling of the pandemic as well as the larger concept that—as the state’s elected chief executive—it’s the governor’s job to lead the state through an emergency.
We note that legislative leaders never asked the governor to call them into a special session. In fact, lawmakers were in session in March 2020 when the pandemic started. They curiously chose to adjourn for the year—early—rather than wait and see if they might need to take action to protect Hoosiers.
In addition, since lawmakers returned in January, they have not voted to actually change anything Holcomb is currently doing.
We see this law as public theater, something Republican lawmakers are doing to appease their conservative base, not something intended to prepare Indiana for the next emergency. And that’s not leadership.