Holcomb: Emergency powers law is a constitutional amendment, requires vote

Indiana Gov. Eric Holcomb is moving forward with his bid to have the Indiana Supreme Court overturn a law allowing the Legislature to call itself into special session, arguing in a new filing that the contested law is akin to a constitutional amendment that must be voted on by Hoosiers.

Holcomb, represented by attorneys with Lewis Wagner LLP, filed an appellant’s brief Wednesday in his case challenging House Enrolled Act 1123. He is asking the justices to throw out HEA 1123 on Indiana constitutional grounds.

HEA 1123, enacted over Holcomb’s veto in 2021, allows the General Assembly to call itself into special session whenever a public emergency has been declared, such as the ongoing COVID-19 public health emergency. GOP lawmakers pushed the bill forward in response to the various restrictions the governor has implemented throughout the pandemic, including a statewide mask mandate.

But in his brief, Holcomb argued, “This case is not about the COVID-19 pandemic or whether Gov. Holcomb’s various executive orders were justified factually or legally.”

“This case is about something far more important than transient policy disagreements between elected officials,” he wrote. “This case is about the Legislature’s enactment of HEA-1123, which improperly usurped a power exclusively vested in Indiana governors by the Constitution, and by doing so, (a) fundamentally altered the delicate separation-of-powers balance established by the Constitution, and (b) denied Indiana citizens their constitutional right to vote on proposed constitutional amendments.”

Since filing his lawsuit in April 2021, Holcomb has consistently argued that HEA 1123 violates Article 3 § 1 and Article 4 § 9 of the Indiana Constitution. The former is the state’s separation of powers clause, while the latter, according to Holcomb, vests his office alone with the authority to call a special session.

But the Marion Superior Court rejected those arguments, granting summary judgment to the General Assembly in October. Judge Patrick Dietrick ruled then that following amendments to the Indiana Constitution in 1970 and 1984, the “emergency session” law is now “a straightforward exercise of the General Assembly’s authority.”

But in his brief to the Supreme Court, Holcomb argued Dietrick misapplied precedent and ignored important context when discussing the 1970 and 1984 amendments.

“If an Indiana voter read his or her local newspaper(s) on the eve of the 1970 and 1984 elections, or in the days thereafter, they would have seen no hint that a constitutional amendment was being proposed that allegedly granted the Legislature a new and broad (unrestrained) ability to call special sessions,” the brief says. “Rather, in 1970, those citizens were asked to vote on whether to give the legislature the ability to ‘meet annually instead of biennially, and to establish the length and frequency of its sessions and recesses by law?’ In 1984, they were asked whether the Constitution should be ‘amended by removing or restating certain antiquated language or provisions to reflect today’s conditions, practices, or requirements?’

“Those questions did not notify Indiana voters that a fundamental constitutional challenge was afoot to expand who (the Legislature) and under what circumstance (any and all) the Legislature could call special sessions, because that is not what the plain text of those amendments did.”

If the General Assembly wants the authority to call itself into special session, Holcomb argued, it must do so via an amendment to Article 4 § 9. He acknowledged that 35 state constitutions grant the Legislature such authority.

“Governor Holcomb does not suggest that, if an amendment is properly passed under Article 16, the Legislature cannot do likewise,” the brief says, referencing the provision of the Indiana Constitution addressing amendments. “But it is not for the Legislature to make that decision by itself.

“Under Article 16(c), it is for the sovereign authority of Indiana’s organic law—its voting citizenry—to decide by a well-informed vote, whether to ratify a proposed constitutional amendment vesting the Legislature with that authority,” the brief continues. “That has not happened.”

The governor also raised a public policy issue, saying HEA 1123 allows the Legislative Council to convene the Legislature by a resolution, while the constitution requires certain elements of a legislative session to be established “by law.”

“Allowing an express constitutional requirement to be exercised by a non-constitutional body comprised of only sixteen members, sets troubling precedent for Indiana’s open and accountable system of government,” he wrote.

The Indiana Supreme Court is considering the challenge to HEA 1123 on an expedited schedule, although arguments will not be heard until April 7.

Although the Legislature is challenging Holcomb’s arguments, it urged the high court to grant his motion for emergency transfer to address the General Assembly’s “threshold defenses.”

On the same day Holcomb filed his brief to the high court, a trio of Indiana academic scholars moved for permission to file an amicus brief supporting him.

Two of the proposed amici, James H. Madison and Elizabeth R. Olson, work for Indiana University, while the third, William McLauchlan, works for Purdue University. The brief notes the proposed amici are representing their individual views, not those of their institutions.

“Amici have each spent decades studying the Indiana Constitution in their respective contexts. They seek to provide this Court a historical perspective on the current dispute,” according to their motion. “… Each of them emphatically agree with Governor Holcomb’s position that at no time did those drafting or ratifying the constitutional provisions at issue here understand the language to extend to the General Assembly the power to call itself into special session.”

The General Assembly is represented in the case by the Office of the Indiana Attorney General. An appellees’ brief is due Feb. 4.