LINCOLN — Gov. Pete Ricketts has already outlined his plan for distributing $1 billion in emergency aid provided by the federal Coronavirus Aid, Relief and Economic Security (CARES) Act to help struggling Nebraskans.
But did he have the authority to do that?
That’s a question being raised around the State Capitol and it has prompted a request for a legal opinion from the Nebraska Attorney General’s Office about whether the governor’s decisions should be subject to approval by the Nebraska Legislature.
A spokesman for the governor said Ricketts does have the legal authority to make decisions on using the federal money.
But State Sen. Steve Lathrop of Omaha cited several conflicting clauses in state law and in the Nebraska Constitution in his request for the legal opinion. Others raising questions include James Goddard, a lawyer with the Lincoln-based Nebraska Appleseed, and University of Nebraska-Lincoln law professor Anthony Schutz.
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Among the conflicting legal guidance being cited: The Nebraska Constitution requires that the Legislature approve any specific appropriations, but a budget bill passed last year gives the governor the authority to direct the spending of any federal dollars not specifically sent to a state agency.
“It’s sort of a question about whether this is an animal, a plant or mineral,” said Lathrop.
He said his motivation is not to second-guess how Ricketts has planned to mete out the funds, but to clarify whether state lawmakers have a legal role in deciding how the $1 billion will be spent. He asked for an opinion to be issued prior to July 20, when state lawmakers reconvene for the final 17 days of their 2020 session.“I don’t think it’s clear. That’s why I asked for the opinion,” said Lathrop, who is a trial attorney and heads the Legislature’s Judiciary Committee. “We don’t want to spend it one way and find ourselves in some sort of a lawsuit over whether the governor had the authority.”
Ricketts’ decisions regarding the CARES Act have already generated some controversy. He told counties that if they mandate the wearing of protective masks in courthouses and other county buildings, they won’t get any CARES Act money from him, a decision that was picked up by media nationwide. Also, the governor disregarded federal guidance that at least $400 million in the CARES money should be allocated to COVID-19 expenses of local governments, saying that $100 million would cover their costs and that struggling businesses and livestock producers needed more help.
A spokesman for the governor cited not only the language in the budget bill that allows a governor to spend federal money, but also the state’s Emergency Management Act, which allows the governor, during an emergency, to “suspend” state statutes so action can be taken immediately to address a crisis.
Taylor Gage, the governor’s spokesman, said the Legislature has a standing practice of allowing governors to spend federal funds when lawmakers are not in session or during an emergency.
“Under the federal CARES Act, the U.S. Treasury allocated funds to Gov. Pete Ricketts as the authorized representative of the State of Nebraska for the limited purpose of responding to the coronavirus pandemic,” he added.
Gering Sen. John Stinner, who heads the legislative committee that draws up the state budget, said he also believes that the governor has the power to spend the CARES Act money but that it’s not a bad idea to get an attorney general’s opinion based on the questions being raised.
Stinner added that he expects debate during the upcoming session about the portion of the CARES Act allocations that Ricketts has not specifically earmarked. The governor set aside $427 million for two purposes — to help replenish the state’s unemployment insurance fund, which has been depleted by a record number of claims by laid-off and furloughed Nebraskans; and to possibly cover state tax revenue shortfalls, if Congress reverses course and allows CARES Act money to be used for that purpose.
Other allocations made by the governor include $85 million for community needs, such as food and housing, $230 million to stabilize small businesses and $100 million to provide aid to livestock producers. He has also set aside $40 million to improve broadband Internet service in rural areas.
Goddard, of Nebraska Appleseed, said the governor is clearly overreaching his authority in acting without seeking legislative approval and that his advocacy group wouldn’t rule out taking legal action. State statutes, he said, never anticipated this huge pot of money being at the discretion of the governor alone.
“We have constitution requirements: The Legislature appropriates and the governor executes,” Goddard said, adding that Appleseed, and several other groups, would like to testify at a public hearing on how the money should be spent.
Other states are all over the map in how they allocated their CARES Act money, which might reflect differing laws and constitutional clauses.
In Iowa and South Dakota, governors made the decision. But in Wyoming, a special session of the Legislature was called to approve how CARES Act money was handed out, and in North Dakota, an emergency committee, headed by the governor but including state lawmakers, made the call.