NM Supreme Court nixes challenge to line item vetoes

New Mexico’s Supreme Court halted a challenge to the governor’s line-item veto authority in a brief, unanimous order issued Thursday afternoon.

State Rep. Miguel Garcia, D-Albuquerque, sued Gov. Michelle Lujan Grisham, his fellow Democrat, last year after she used line-item vetoes to delete 36 out of 44 provisions of an omnibus tax bill passed during the 2023 legislative session. Garcia argued the vetoes were unconstitutional because the governor may only use that power for bills that spend money from the treasury: She would otherwise need either to sign the bill into law, veto the legislation in its entirety or allow the 20-day limit from the end of the session to expire before signing it (known as a “pocket veto”).

“This Court has yet to decide if bills that provide for a tax rebate or refundable tax credit are categorically a bill that appropriates money that is subject to the Governor’s line item veto…” Garcia’s petition stated. 

Further, the petition asked the state’s high court to rule on whether distributions and allocations of tax revenue count as appropriations in the context of the governor’s veto authority. The bill, House Bill 547, addressed, among other items, non-refundable tax credits, deductions and tax rates, according to the petition.

Garcia argued that the Supreme Court had jurisdiction to resolve the constitutional question and that pursuing relief through district and appellate courts would “require New Mexico taxpayers to continue paying taxes they may not owe, and to continue being denied the tax credits of deductions they are otherwise lawfully entitled to” if the vetoes were declared null and void.

The petition asked the court to declare the vetoes unconstitutional and issue an order putting the entire bill into effect as law, through a writ of mandamus.

In an April 7, 2023 executive message, Lujan Grisham said she would leave in provisions of HB 547 such as one-time tax rebates, increases to child income tax credits and film industry tax incentives as well as gross receipts tax deductions for health practitioners. Other provisions of the bill, she argued, would decrease revenue and endanger funding for other services and programs.

In Section 22 of the New Mexico Constitution, the document states: “The governor may … approve or disapprove any part or parts, item or items, of any bill appropriating money, and such parts or items approved shall become a law, and such as are disapproved shall be void” unless the legislature votes to override the veto.

Garcia was represented in the proceeding by attorney Jacob Candelaria, a former state senator.

In the governor’s response to the suit, she argued, among other points, that the state Constitution’s framers intended for the governor to have “an exceptionally broad power to check the Legislature’s appropriation authority,” and that these vetoes were proper. For instance, tax rebates or credits involve commitments from the treasury even if they were not named as appropriations. The governor’s legal team also cited a previous opinion from the office of the Attorney General in 2011, after Gov. Bill Richardson vetoed items from a tax bill, arguing that a tax rebate increase was subject to a governor’s veto.

The Supreme Court did not hear arguments beyond the petition and response, and the order simply denied the petition without stating its reasons, something Candelaria noted in a written statement Thursday.

“The Court’s decision thus leaves important questions about the extent of the Governor’s veto power unanswered — chief among these being whether a bill that creates or amends a refundable tax credit, or a bill that transfers funds between one fund in the state treasury to another, are ‘appropriations’ subject to the line item veto,” he wrote.

“The Governor raised several procedural and substantive defenses in this case, and it’s not clear which of these arguments the Court was persuaded by.”

Leaving the constitutional questions unaddressed would likely lead, he argued, to future litigation “as the executive (branch) continues to push the bounds of its authority over the legislative process and the power of the purse.”

The Las Cruces Bulletin reached out to the governor’s office, which did not immediately respond.