As promised, Gov. Eric Holcomb vetoed legislation Friday that would have allowed the Indiana General Assembly to convene a 40-day “emergency session” at any time of the year as a check on the potential abuse of the governor’s authority during a disaster or public health emergency.
The Republican chief executive said in his veto message to the Republican-controlled Legislature he believes House Enrolled Act 1123 runs afoul of the Indiana Constitution, which he said only permits the governor to call a special legislative session once the House and Senate have adjourned for the year, typically in April during odd-numbered years and in March during even-numbered years.
“If HEA 1123 becomes law and can be used by the General Assembly, it will create significant uncertainty and solidify the controversy over its constitutionality. This is a matter of immediate and substantial public interest,” Holcomb said.
“In addition, any legislative actions taken during an unconstitutional special session will be void and thus open and subject to legal challenges to set them aside.”
Holcomb warned legislators last week a veto was certain if they advanced the legislation to his desk. House and Senate leaders shrugged off the threat since it takes only a majority vote in each chamber to override the governor's veto — the same level of support required to approve the measure in the first place.
They also insisted the Constitution allows the Legislature to set the days and times it convenes, and establishing an emergency session falls within that authority.
Ultimately, the Indiana Supreme Court may have to decide who is right.
A veto override vote in both chambers could come as soon as next week. If lawmakers agree to enact the measure notwithstanding the governor’s objection, it would take effect immediately.
The proposal originally passed the House 64-33 and was approved 37-10 by the Senate.
State Rep. Matt Lehman, R-Berne, said Monday the legislation isn't necessarily about Holcomb's response to the COVID-19 pandemic and it doesn't take away any of the expansive powers granted to the governor to operate the state during an emergency situation.
Rather, Lehman said it will ensure the Legislature has a seat at the table if a future governor dealing with a future emergency is less interested in listening to state lawmakers.
"All this is saying is that, at some point, the peoples' voice must be heard — and the peoples' voice is us," Lehman said.
The legislation also establishes a separate 10-member Legislative State of Emergency Advisory Group to tell the governor what they think of his response to an emergency, no matter if the General Assembly is in session or not, and requires the House and Senate to appropriate all discretionary economic stimulus funds provided to the state by the federal government.
Holcomb previously said he has no problem with those provisions and he agrees “it should be expected that we work together” on state spending plans.
But he said it’s different when it comes to responding to state emergencies.
“You see it’s taken months to arrive at where we are right now. And we didn’t have months to make decisions,” Holcomb said. “So of course I want to work with them. But I cannot skirt my duty and do something that I believe is unconstitutional.”
The governor’s nearly unlimited emergency powers, enacted by the General Assembly following the Sept. 11, 2001 terrorist attacks, have led some Hoosiers, and their elected representatives, to bristle at the scope of the governor’s orders aimed at preventing the spread of COVID-19, including his now-expired face mask mandate and stay-at-home order.
Holcomb has said he repeatedly asked legislative leaders last year whether they wanted him to call a special session only to repeatedly be told no.
The Legislature also has been meeting since January in its regular, annual session and so far has not exercised its existing authority to immediately terminate the governor’s COVID-19 emergency orders by a majority vote in each chamber.
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