Burgum, ND leaders divided on accepting, disbursing funds

Limited to 80 days total, the 67th North Dakota Legislative Assembly is scheduled to conclude in Bismarck before Friday, April 30.

Special sessions of the North Dakota Legislative Assembly are for addressing special circumstances as they arise, Gov. Doug Burgum stated Monday, April 26.

Special legislative sessions are not for receiving incremental amounts of federal dollars in the normal execution of state business, Burgum continued. With that, the Republican governor issued his fourth veto of 2021, declining to sign Senate Bill 2290.

In its current form, the bill relates to emergency commission and budget section approval to accept and disburse federal and other funds, as well as the declaration of an emergency.

“The emergency commission, with approval of the budget section of the legislative management if the amount under consideration exceeds $3 million, may authorize any state officer to receive and expend federal moneys from the date such moneys become available until June 30 following the next regular legislative session,” SB 2290 states.

The budget section may approve a request under the above subsection if the form received from the emergency commission or may amend and approve a request, SB 2290 continues. A request amended and approved by the budget section is deemed to be approved by the emergency commission.

North Dakota’s Budget Section is composed of 42 lawmakers and meets between legislative sessions, Forum News Service reported. Under SB 2290, the Budget Section would have the authority to overrule the six-member Emergency Commission. The commission’s members include North Dakota’s governor and secretary of state.

“The aggregate amount of requests to expend funds that may be approved each biennium under this section may not exceed $50 million,” SB 2290 states. “Any request received under this section to expend funds received through a federal act that makes available more than $50 million to the state may be approved only by the legislative assembly during a regular legislative session or a special legislative session by the governor.”

North Dakota has received approximately $1.25 billion in CARES Act funding in the last year, Burgum wrote. The governor cited the “long-established framework” of having receipt and disbursement of CARES funds being handled through requests to the Emergency Commission.

SB 2290 has twice passed in the North Dakota Senate, with 45-1 and 46-1 votes. It has also twice passed in the North Dakota House, with 78-14 and 73-19 votes. Overriding the veto would require a two-thirds majority in each chamber, Forum News Service reported. The Senate was expected to vote Tuesday, April 27 on an override, followed by a House vote Wednesday, April 28.

“The significant expansion of powers in Senate Bill 2290 clearly violates the separation of powers doctrine and attempts, via a unconstitutional $50 million trigger, to force the governor to call a special session to authorize expenditures of known or foreseeable federal funds,” Burgum wrote. “It may further result in the Legislative Assembly circumventing its constitutionally authorized 80-day limit per biennium.”

Burgum also cited the North Dakota Supreme Court’s 2018 ruling in a case between himself and the legislature.

“In this opinion, the court held the state legislature ‘may not delegate to another body the power to make law — to legislate,’” Burgum wrote. “The power to reject an Emergency Commission decision ‘without the further action of the passage by both house of the Legislature and signing by the Governor’ violates the separation of powers doctrine and in an unconstitutional exercise of authority.”

As of April 27, Burgum has issued vetoes against SB 2290; Senate Bill 1298, relating to participation in athletic events exclusively for males or females, and to provide for a legislative management study; House Bill 1323, relating to limitations on mask-wearing requirements; House Bill 1378, relating to authority for the legislative assembly to conduct business in December of even-numbered years. To date, only the veto of HB 1323 has been overwritten by state legislators.

Limited to 80 days total, the 67th North Dakota Legislative Assembly is scheduled to conclude in Bismarck before Friday, April 30.

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