Stenehjem Protects the Separation of Powers


“All sides are gonna be pissed at Wayne,” a political friend texted me yesterday upon news of Attorney General Wayne Stenehjem’s opinion (see below) on the legality of some of Governor Doug Burgum’s vetoes issued earlier this year. “Nobody got everything they wanted.”

That’s true. As you can see from this key excerpt, Stenehjem upheld some of Burgum’s vetoes. He found that others were illegal. On a couple of the later, he also opined that while Burgum overstepped his veto authority they probably wouldn’t stand up to scrutiny in court anyway:

So, a mixed bag for all involved.

There hasn’t been a lot of reaction from legislators yet, but Burgum seemed largely accepting of the opinion. “Upon our initial review, we are pleased that the attorney general’s opinion supports the overriding intent of these vetoes: to protect executive branch authority, preserve the separation of powers and prevent the spending of scarce state resources without the benefit of full transparency and the scrutiny of public involvement afforded through full legislative review,” he said in a statement.

I reached out to Burgum spokesman Mike Nowatzki this morning to see if a legal challenge to Stenehjem’s opinion was in the offing. He said their office is “still reviewing the Attorney General’s analysis and considering options.” Stenehjem’s opinion is binding for public officials until such a time as a court rules differently.

It seems to me that Stenehjem got this right, and along the way protected the authority of all three branches of government.

He upheld the executive branch by finding some of vetoes valid. He upheld the legislative branch by striking down other vetoes. He even protected the judicial branch by pointing out that, while some of the provisions Burgum illegally vetoed are likely unconstitutional, it’s the courts not the governor who should decide that.

That’s all very important. Who has the authority to wield power in government, and how far that power can reach, is an endless debate. One often overlooked by the public because it transcends the more routine sort of partisan politics team sports the public is enamored with. In this instance a Republican-dominated legislature was pushing back against a Republican governor on vetoes.

These food fights between branches of government are always a fraught exercise. All the more so in this instance because Burgum and Stenehjem are not that far removed from a bruising Republican primary contest which the latter lost in a landslide.

But Stenehjem rose above the politics of pettiness and delivered an opinion that’s right on the money.

Here’s the full thing:

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