Indiana lawmakers on Thursday listened to four hours of testimony on how the governor’s powers should — or should not — be restricted during public emergencies and whether or not the approach they are taking is constitutional.
During the occasionally tense Senate Rules and Legislative Procedure Committee hearing on House Bill 1123, a slew of officials from Gov. Eric Holcomb’s administration tried to convince lawmakers that the governor’s ability to make quick decisions has been key to the state’s response to the COVID-19 pandemic.
Holcomb, a Republican, first issued the public health emergency order for the COVID-19 pandemic in March and has continued it every 30 days since then.
HB 1123, authored by Rep. Matt Lehman, R-Berne, would create what would be called an “emergency session,” which would allow lawmakers to convene at any time during a statewide emergency.
In order to convene an emergency session, the Legislative Council would have to pass a resolution declaring why an emergency session is necessary, setting the agenda for the session and determining the time, date and place for the session. Only bills related to that agenda would be allowed to be considered during the session.
Emergency sessions would be limited to 40 days and would be required to end within 10 days of the end of the state of emergency.
Lehman said the question he has heard repeatedly from constituents is, where is the voice of the people?
“We had nothing to do,” Lehman said of state lawmakers’ role during the pandemic. “We had our hands tied.”
The bill would also prohibit state and local orders from restricting anyone’s ability to worship, and allow local health department orders to be less stringent than the governor’s, if the governor’s executive order allowed it.
If a local health department imposed more stringent restrictions than the governor, the restrictions would have to be approved by the city council or county commissioners, whichever would be appropriate.
The bill takes a much different approach from the Senate version, which would allow the governor to issue an initial 30-day emergency order, but would limit any extensions to only 15 days, unless the Legislature was called for a special session or was already in session.
If the governor called lawmakers in for a special session, or they were already in session, the initial order could be extended for 30 days under Senate Bill 407. To have an emergency order extend beyond a 60-day period, the Legislature would have to vote to approve the extension.
During Thursday’s hearing, a few individuals who testified were supportive of both bills, but most of the discussion was dominated by state agency leaders discussing how the executive orders issued by Holcomb helped them respond quickly and effectively to the pandemic.
Some of those orders contained provisions that allowed recently retired health care workers to volunteer, extended tax deadlines and modified rules involving Medicaid. Agency leaders argued those provisions were critical to helping Hoosiers.
“Our ability to respond efficiently and effectively to this one-in-a-lifetime emergency has been tied to the governor’s executive orders from that first week until now,” Indiana State Health Commissioner Dr. Kris Box said.
Department of Homeland Security Executive Director Steve Cox also tried to stress the fact that the state is still responding to the pandemic, so he doesn’t believe now is the right time to make changes.
“It’s important that we have a full purview of everything that’s happening,” Cox said.
But Sen. Mark Messmer, R-Jasper, challenged Cox to provide one example of how HB 1123 would prevent Cox from doing his job.
“We have not heard anything yet that deals directly with this bill,” Messmer said. “I’m waiting.”
Messmer became frustrated with Cox after he repeatedly did not provide an example.
“So you’re just not going to answer the question then?” Messmer said.
Department of Local Government Finance Commissioner Wes Bennett, Department of Revenue Commissioner Bob Grennes, Family and Social Services Administration Secretary Jennifer Sullivan, Indiana Adjutant General Brigadier General Dale Lyles and Indiana Public Access Counselor Luke Britt also testified against the bill — an unusually high number of state agency leaders publicly weighing in on one issue.
The hearing also revolved around whether either HB 1123 or SB 407 would be considered constitutional. Holcomb has already expressed his concerns that they would not be.
Former Indiana Supreme Court Justice Frank Sullivan said during Thursday’s hearing that he believes both bills are unconstitutional, because the state Constitution gives the power of calling special sessions to the governor, not Legislature, and one branch of government cannot do something that another branch has been given explicit power to do.
He said lawmakers also cannot force the governor to call special sessions, which is the approach SB 407 takes.
If either bill became law, he said, any legislation passed during those sessions would be found to be unconstitutional because the session itself was unconstitutional.
“We’d have an unholy mess on our hands,” Sullivan said.
William Barrett, a partner at Williams Barrett & Wilkowski LLP, agreed with Sullivan’s interpretation.
“No branch may interfere with the operations of another. Period,” Barrett said. “If you proceed on this path, you will have an unholy mess, in his words.”
Instead of passing those bills, Sullivan said lawmakers could change what a governor is allowed to do with executive orders or pursue a constitutional amendment to give the Legislature the ability to call a special session.
He also said he believes the governor cannot spend any money that has not been appropriated by the General Assembly. Holcomb has been spending all of the federal pandemic relief funding without input from the Legislature.
Lehman brushed off constitutionality concerns and suggested that the courts could address that once a bill passes.
“Let it play out,” Lehman said.
Sen. Travis Holdman, R-Markle, also seemed unconvinced by Sullivan and Barrett.
“We could have recruited folks to come and say what we wanted them to say,” Holdman said. “It is two men’s opinions.”
The committee did not vote on the bill. Senate President Pro Tem Rodric Bray, who chairs the committee, said senators are drafting an amendment to the bill and that will be presented next week before voting on it.