The Indiana Senate voted Monday to grant the General Assembly the unprecedented — and likely unconstitutional — authority to convene an "emergency session" any time the governor declares a statewide emergency, regardless of whether the governor sees a need to call lawmakers back to the Statehouse.
State Sen. Sue Glick, R-LaGrange, said House Bill 1123 is the Legislature's response to the emergency powers exercised for the past year by Republican Gov. Eric Holcomb as he's worked to address major and minor state needs amid the COVID-19 pandemic.
The proposal does not rescind any of the governor's emergency powers that have been the source of much consternation for some Hoosiers and their elected representatives, especially in connection with the governor's face mask directive and stay-at-home orders aimed at minimizing the spread of COVID-19.
Instead, under the plan, House and Senate leaders would gain the ability to call the General Assembly into emergency session for up to 40 days when top lawmakers decide legislative action is needed to respond to a state of emergency declared by the governor or to undo his emergency orders.
Notably, the Republican-controlled General Assembly already has been meeting since January in its regular, annual session, and so far has not exercised its existing authority to immediately terminate the governor’s COVID-19 emergency orders by a simple majority vote in each chamber.
The proposal also establishes a separate 10-member Legislative State of Emergency Advisory Group to tell the governor what they think of his response to an emergency, no matter if the General Assembly is in session or not.
Senate President Rod Bray, R-Martinsville, said he believes having a formal entity linking the governor and the Legislature during a statewide emergency will enhance communication between the executive and legislative branches and minimize the potential for conflict.
Holcomb has said he repeatedly asked legislative leaders last year whether they believed a special session was necessary only to repeatedly be told no.
According to the Indiana Constitution, only the governor is authorized to call the Legislature back to the Statehouse after lawmakers have adjourned for the year, typically in April during odd-numbered years and in March during even-numbered years.
Former Indiana Supreme Court Justice Frank Sullivan Jr. told the Bray-led Senate Rules Committee earlier this month establishing an emergency session by statute is likely to be deemed unconstitutional, and any emergency actions taken by the Legislature during that session likewise would be invalid.
In addition to the emergency session proposal, the legislation contains a requirement that all discretionary economic stimulus funds provided to the state by the federal government sit in a single account until either the General Assembly or State Budget Committee decide how the money should be spent.
"This bill recognizes that the General Assembly has both the statutory duty and the Constitutional responsibility to appropriate the funds of the state of Indiana," Glick said.
The measure was approved by the Senate nearly along party lines with all 38 Republicans in attendance and state Sen. Frank Mrvan, D-Hammond, supporting the measure, and 10 Democrats opposed.
It now goes back to the House for lawmakers to either consent to revisions made by the Senate or to send the proposal to a House-Senate conference committee, which will work to craft final language capable of winning approval in identical form by both chambers.
Legislative leaders have hinted they want to get the proposal to Holcomb as soon as possible so there will be time remaining in the regular legislative session to override the governor's veto, if necessary.
The Senate also last week added a severability clause to the measure to ensure even if parts of the proposal later are deemed unconstitutional the valid portions would remain in effect.