Burgum’s Right That the Legislature’s Delegation of Powers to an Interim Committee Is Unconstitutional

North Dakota Gov. Doug Burgum presents his two-year budget proposal to state lawmakers Wednesday, Dec. 5, 2018. Tom Stromme / Bismarck Tribune

Today Governor Doug Burgum announced that he has vetoed SB2055.

You can read his veto statement and accompanying letter explaining his decision below.

In his letter, Burgum quotes from a state Supreme Court ruling, Legislative Assembly vs. Burgum, settling a dispute between the Legislature and his administration over vetoes (where Burgum mostly lost) and the delegation of legislative authority (where Burgum mostly won).

Per Burgum SB2055, which modifies the authorities of the interim Budget Section committee, is still unconstitutionally vague.

If you need to get up to speed, the Budget Section acts as a sort of mini legislature in between regular legislative sessions. In the past lawmakers have delegated authority to this committee to make certain policy decisions. In their aforementioned opinion, the state Supreme Court found the manner in which the Legislature was doing this to be unconstitutional.

“The Legislative Assembly may not delegate to another body the power to make law,” the court said, which Burgum quotes in his veto statement.

“After a law is enacted, further fact finding and discretionary decision-making in administering appropriated funds is an executive function,” the court writes in its opinion.

But I think there’s a more pertinent portion of that opinion for the matter at hand. “The failure to adequately constrain the budget section’s discretion” was “not the only constitutional flaw” the Legislature approved, the court wrote.

“The Legislative Assembly was not attempting to delegate its core legislative power to the executive branch, but to retain control over executing a law after it is enacted by delegating power to a committee of its own members,” the opinion continues.

That seems key to me. If you read the text of SB2055, the authority it grants the Budget Section is pretty broad: “The legislative assembly, by law, may provide the authority for the budget section to approve specific actions, projects, and transfers.”

That in and of itself is probably fine. Whether or not a specific provision of authority is unconstitutional would hinge on the text of that legislation.

What’s problematic, as the Supreme Court noted, is not that the Legislature uses the Budget Section as a mini-legislature acting outside of a full quorum of the body, but that it uses the Budget Section as a sort of executive branch made up of members of the legislative branch.

“After a law is enacted, further fact finding and discretionary decision-making in administering appropriated funds is an executive function,” the court writes in its opinion.

That sort of thing is exactly what the Budget Section does. Per the court’s opinion they shouldn’t be doing it because it’s the job of the executive branch.

Burgum was right to veto this legislation.

Rob Port is the editor of SayAnythingBlog.com, a columnist for the Forum News Service, and host of the Plain Talk Podcast which you can subscribe to by clicking here.

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