Abdul-Hakim Shabazz: Who can call special legislative session? Not lawmakers

A few weeks ago, I had nothing better to do with my time, so I decided to read the Indiana state constitution to see what it said about special sessions and who has the authority to call them.

Here’s what I found.

I discovered the term “special session” is mentioned only three times in the document.

The first time “special session” is mentioned is in Article 4, which deals with the legislative branch of government.

Under Article 4, Section 9, it says, “The sessions of the General Assembly shall be held at the capitol of the State, commencing on the Tuesday next after the second Monday in January of each year in which the General Assembly meets unless a different day or place shall have been appointed by law. But if, in the opinion of the governor, the public welfare shall require it, he may, at any time by proclamation, call a special session. The length and frequency of the sessions of the General Assembly shall be fixed by law.”

The second time the term “special session” is mentioned is when there is a vacancy in the lieutenant governor’s office (Article 5, Section 10). The constitution says, “If the General Assembly is not in session, the Governor shall call it into special session to receive and act upon the Governor’s nomination.”

And the third time “special session” is used is in Article 5, Section 14. It goes to the Legislature’s override of the governor’s veto of the legislation: “If the Governor returns the bill under clause (A), the General Assembly shall reconsider and vote upon the approval of the bill before the final adjournment of the next regular session of the General Assembly that follows the regular or special session in which the bill was originally passed.”

I bring this up because nowhere in the Indiana Constitution does it give the Legislature authority to call a special session.

Why does this matter? It matters because lawmakers are looking to curb the governor’s emergency powers. The legislation would establish a process for the General Assembly to call itself into a 40-day emergency session to consider legislative action in response to a gubernatorial declaration of a statewide emergency.

Sorry, guys and gals, but you don’t have the authority to do this. The state constitution makes it clear that only the governor has the authority to call a special session. Remember: The term “special session” is mentioned three times in the constitution and nowhere does it say the Legislature has the authority to call one.

The counterargument to all of this is that the state constitution doesn’t say lawmakers can’t call a special session, so the default position is that they can.

That doesn’t cut it. There is no “necessary and proper” clause in the state constitution as there is in the U.S. Constitution that gives Congress the authority to pass all laws necessary and proper to carry out its duties.

If the state’s founders had wanted Indiana lawmakers to have the authority to call a special session, they would have given them the authority or someone would have amended the document.

At the most, under Article 4, Section 16, it says, “Each House shall have all powers, necessary for a branch of the Legislative department of a free and independent State.” But that’s pushing it.

Lawmakers, you’re overstepping your authority. And if you don’t believe it, maybe you will when the courts throw out your “emergency session” provision because—wait for it—it violates the state constitution.•

__________

Shabazz is an attorney, radio talk show host and political commentator, college professor and stand-up comedian. Send comments to ibjedit@ibj.com.

Click here for more Forefront columns.