It's become a legal battle over a legal battle, and Indiana taxpayers will be on the hook for it.
Republican Gov. Eric Holcomb is sparring with GOP colleagues in the General Assembly over a misguided bill enabling lawmakers to call themselves in for emergency legislative sessions.
Battle No. 1: Holcomb and experts including former Indiana Supreme Court Justice Frank Sullivan have said the bill is unconstitutional, and the state grants only the governor the power to call lawmakers back. Lawmakers were upset they weren't consulted on emergency provisions enacted by Holcomb during a once-in-a-lifetime pandemic. Those decisions had to be made quickly, but the legislators argue they should have more say in the process.
The governor vetoed the bill, and Republicans – their Statehouse supermajority in force – needlessly prolonged the fight by overriding the veto. That set up the next stage, which Holcomb announced Tuesday.
Battle No. 2: The situation is now in court, where Holcomb argues in a lawsuit that lawmakers approved an unconstitutional law.
But it doesn't end there.
Indiana Attorney General Todd Rokita says he's the only one who can determine and advocate a legal position for state government in court. Holcomb sought permission to hire another lawyer to handle his case, but Rokita said no.
The governor hired another attorney anyway, filing the lawsuit in Marion County and setting up more legal back-and-forth over whether the case will even continue.
In short, it is a mess.
It was avoidable and – as Rep. Phil Gia-Quinta, D-Fort Wayne, said in a statement Tuesday – it's a shame taxpayer dollars will be used to resolve a power struggle between the governor and Republican lawmakers. How much could be spent is not yet clear.
Holcomb was right to try to squash the emergency powers bill, and legislators should have let the decision stand.
Instead, the state finds itself in the middle of a rare legal quandary.
The legislature was last sued by the state's chief executive in 1941, when then-Gov. Henry Schricker sued and later won. The Democrat sued Republicans in the General Assembly after they tried to limit the governor's power.
Senate President Pro Tem Rodric Bray called the current case “a fundamental disagreement on the constitutionality” of the measure, but there is more to it.
Public health emergencies such as the one brought on by COVID-19 call for immediate action to limit harm, and the governor is in the best position to make decisions quickly. Waiting for a deliberative body like the legislature to reform itself and debate things such as mask-wearing and occupancy limits for businesses in the face of a growing, deadly health threat is frightening.
Former state Supreme Court Justice Ted Boehm told The Journal Gazette's Niki Kelly this month that it would be a “bizarre result if the attorney general takes the position that (Holcomb) doesn't have the authority and can preclude him filing.”
Well, here we are. A judge can now weigh that question and whether the new law is constitutional.
It didn't have to be this way.
What do you think?
Do you agree with the governor's decision to challenge the bill in court?
Should the attorney general be able to stop the governor from challenging it?
Make your opinion known.
600 W. Main St.
Fort Wayne, IN 46802