While Minnesota was confronting a budget impasse in 2017, culminating with the Minnesota Supreme Court’s decision in Ninetieth Minnesota State Senate v. Dayton, New Mexico was experiencing a similar struggle over an item veto of appropriations for the state legislature and public higher education institutions. Legislative staffs in both states were well aware of each other’s efforts and have since shared their experiences. Those joint collaborations may have led the Mitchell Hamline Law Review to seek a New Mexico perspective as part of Issue 2 of Volume 45, which considers separation of powers doctrine topics. The author was pleased to accept the invitation, leading to the submission of this introspective look at the New Mexico experience.
Part II of this article provides a brief summary of the separation of powers doctrine from its origins to its application in federal and state constitutional law. The focus throughout is on the inevitable tension which arises when applying a doctrine of separateness that all agree cannot, and should not, be rigorously applied. Part III then turns to the item veto provision (often referred to as the line-item veto) that allows a governor to veto particular appropriations or parts of bills appropriating money without having to veto the entire bill. Part IV follows with a review of constitutional struggles between the executive and the legislature over defining the state’s role in cooperative federalism programs, or programs initiated under federal law.
With respect to the item veto power, New Mexico proves a useful window because of its extensive jurisprudence on the subject. Part III starts with New Mexico’s early judicial review of the power, followed by the development of what appears to be a jurisprudence of settled principles. That jurisprudence becomes more difficult to apply when the political clash between the branches heighten and the cases become more intractable for the parties to litigate and the court to resolve.
The federal-law-based cases dealt with in Part IV brings us back to basic separation-of-powers principles: the struggle between the executive and the legislature for an upper hand at fashioning state participation in a joint federal-state program or a state program responding to federal law. Part V draws conclusions about lessons to be learned from the New Mexico experience.