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Port: Lawmakers right to sue Burgum

By Staff | Jun 30, 2017

An interim legislative committee has voted in favor of proceeding with a lawsuit against Gov. Doug Burgum.

There will be more meetings, and more votes, before anything actually gets filed but as it stands now there will be a legal battle over a group of vetoes Burgum issued at the end of the Legislature’s 2017 session.

The lawmakers are right to take up this fight. Burgum’s vetoes went too far.

The taxpayers will have to pick up the tab for both sides of this legal squabble, but the expense is worth it for the sake of keeping executive power in check.

The state constitution gives our governor two tiers of veto authority. Burgum can veto any given piece of legislation outright, sending it back to the Legislature for a possible override vote. But when it comes to appropriations bills, Burgum can also deploy a line item veto, taking out parts of a given bill without necessarily rejecting it in its entirety.

There is a limit to that latter authority created by the North Dakota Supreme Court in a 1979 case called Link v. Olson.

That case involved former Gov. Art Link vetoing a portion of an appropriation bill which created a new executive branch office under the lieutenant governor, then using an executive order to move the duties of that new office to his own office.

He funded that move with the appropriation provided by the Legislature for the original office.

Opponents of this move argued that Link hadn’t vetoed the legislation but had rather altered it.

Altering the law is what the legislators do. The executive branch can veto but cannot legislate.

Link lost the case. The governor “may not veto conditions or restrictions on appropriations without vetoing the appropriation itself,” the North Dakota Supreme Court ruled.

That’s an important restriction to recognize. Otherwise governors would be left with the authority to veto all legislative intent in appropriations bills and use the money for whatever they want.

If governors can do that, why do we even need a Legislature?

Which brings us back to the here and now. Lawmakers claim that more than one of the vetoes issued by Burgum alters the intent of the bill. They say the governor was legislating from the executive office.

They have a strong case, I think. It will be nice to have the courts weigh in.

We’ll probably get a round of griping about these legal proceedings from the usual cast of gadflies and partisan opportunists. They’ll say it’s a waste of time and too much expense, but they’re wrong.

It’s important, for the sake of checks and balances in our state government, that we see this issue adjudicated.

Port, founder of SayAnythingBlog.com, a North Dakota political blog, is a Forum Communications commentator. Follow him on Twitter at @RobPort

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