One Minute to Midnight

As I've discussed in earlier posts, there is a long-running legal dispute between executive and legislative lawyers about whether the Governor has the authority to set an end time for a special session.  The issue has never come to a head in Nevada, although there is an Attorney General's opinion to the Guinn administration opining that the Governor can in fact declare a time by which the Legislature must adjourn.  But the issue has not been tested in court. 

Today, the Governor released an amended proclamation on the special session, adding several agenda items for consideration, and also setting the end of the special session at 11:59 p.m. on Sunday.  For history buffs, this provides a nice reference to the doomsday clock, which was used to track how close the world came to nuclear armageddon during the cold war.  With midnight representing all out nuclear war, the closest the clock ever got was 11:58 p.m. in the 1950's.

It's a fitting analogy as the pieces are now in place for the executive and legislative branches to engage in a legal showdown that could forever change how special sessions are conducted in Nevada if an agreement cannot be reached by Sunday night, which could result in either the erosion or solidification of the power of the executive branch.

Comments

[Sean McDonald]

The Legislature should protect its institutional prerogatives, bite the bullet here and force the issue.

My view is the Governor's special session power is not broad. He gets to set the agenda topics, but not tell the Legislautre how to go about considering the topics. (E.g., the Governor can say "consider solutions to balance the budget," but he can't tell them exactly how to do that.) To hold otherwise would be to allow the Governor to exercise legislative power, in violation of separation of powers. Indeed, the Governor already gets to pass judgment on how the Legislature addresses the agenda topics through the veto.

Further, the Legislature needs to stay in special session long enough to protect its prerogative to override vetoes. If the Governor can set a deadline by which the Legislature must abide, particularly retroactively after a special session is convened, the Governor can effectively cut off veto override consideration until the next regular legislative session or a special session called to consider the vetoed bills again. Also, the Governor could just unilaterally adjourn a special session if it takes a turn he does not agree with.

The Legislature needs to set itself up to force veto override consideration, otherwise Gibbons can force a government shutdown all by himself.

Further, the state constitution does specifically provide that the Governor may adjourn the Legislature when there is disagreement between the two houses as to the time of adjournment. Nev. Const. art. 5, sec. 11. But if the houses do not propose adjournment dates to one another, can there be disagreement that triggers the Governor's power?

It's been a while since I've read the AG opinion, but to me it does not logically follow that the power to convene necessarily includes the power to adjourn, particularly where there is a specific constitutional provision that describes the adjournment power of the Governor. In light of the 20-day limit on special sessions no longer existing in the constitution, I think the reasoning becomes even more tenuous.