Columbus lawmakers will vote to override governor’s veto

Area legislators say they will vote to override Gov. Eric Holcomb’s veto of Senate Bill 5, in a similar move to the override of HB 1123 last month, both bills dealing with emergency powers of the governor and health officers.

Senate Bill 5 requires any local emergency health order that is more stringent than those issued by the governor to go before a board of county commissioners or a city council for approval, depending on how widespread the emergency is. Within days of being introduced, the proposed legislation accumulated 32 co-authors that include Sen. Greg Walker, R-Columbus and Sen. Eric Koch, R-Bedford.

Holcomb vetoed the Senate Bill 5 on May 4. That prompted Senate and House leaders to announced they will convene themselves from recess on Monday to go back into session.

The governor’s coronavirus-related executive orders over the past year have allowed local health officials to establish tougher regulations — an authority he frequently cited in defending his decisions lifting various statewide travel, crowd size and business restrictions. 

"The strongest argument (for Senate Bill 5) are citizens who want to appeal a decision made by anyone issuing or administrating emergency powers based on an emergency declaration," Walker said. "The final decision should rest in the hands of an elected or several elected officials."

Walker and State Rep. Ryan Lauer, R-Columbus, say if the question arises in their respective chambers, they will vote to override the governor’s veto on Senate Bill 5.  

"In doing so, we will be making sure our communities have local control to do what they think is best during a statewide emergency," Lauer said.

Walker says one reason he believes an override on Senate Bill 5 will hold up in court because there is no mention of health departments in the Indiana Constitution.

But the Indiana State Medical Association, the state’s largest physicians group, said it supported Holcomb’s veto because of what it called “potentially harmful proposals” included in Senate Bill 5. The governor said he believed it was “prudent to avoid any unnecessary disruption or wholesale changes to our existing local public health authorities.”

Some other medical and health organizations also opposed the bill, arguing against shifting authority away from public health professionals to local elected officials who largely don’t have any medical experience or expertise.

In response, Walker said that while the Indiana State Department of Health issues professional, scientific opinions and decisions, they still have to be checked by an elected official, in this case, the governor.  He also said everybody benefits if medical experts work with elected officials to educate them on health-related emergencies.

Indiana lawmakers can override Holcomb’s veto by a simple majority vote in each chamber, which would put the measure into effect immediately.      

Lauer cited Allen County, which includes the city of Fort Wayne, as one of a number of communities where health officials had become over-zealous and overreached.

"Just because we have a pandemic or statewide emergency doesn’t mean you lose your God-given Constitutional rights," Lauer said. "There’s a balance that has to be recognized."

Examples of overreach or unconstitutional mandates cited by Lauer include threats to penalize people wishing to worship together. He also questioned why some health officials allowed large box stores to remain open, but required some small businesses to shut down. Every business needs to be treated equally, Lauer said.

During the shutdown, grocery stores and large box stores with hardware items were allowed to remain open as essential businesses, but restaurants and some other small businesses, such as gyms and hair salons, were not.

"It’s important that (an un-elected health officer) should not be making unilateral decisions that impact businesses and livelihoods, "Lauer said. "That needs to be a local community decision."

The first proposed law vetoed by Holcomb this year that was overridden by state lawmakers was House Bill 1123.

"It states that in an emergency, (lawmakers) have the power to call themselves back into session," Walker said.

A lawsuit filed on May 4 by Holcomb challenges the law. 

Holcomb vetoed the bill, saying a central part of it was unconstitutional and violates the separation of powers outlined by the Indiana Constitution.

In a statement after he filed the lawsuit, Holcomb said he took an oath to uphold the Indiana Constitution and he has “an obligation to do so.”

“This filing is about the future of the executive branch and all the governors who will serve long after I’m gone,” Holcomb said.

In the lawsuit, Holcomb alleges “the General Assembly has impermissibly attempted to give itself the ability to call special sessions, thereby usurping a power given exclusively to the governor.”

He adds that Sections 2, 4 and 5 of House Enrolled Act 1123 infringe upon and undermine the constitutional power to call sessions, which is a power the constitution only gives the governor. The lawsuit says these provisions will be disruptive to the state.

“HEA 1123’s very existence has created uncertainty and confusion,” the lawsuit states. “This controversy must be resolved as soon as possible or the consequences could be severe, including disruption to Indiana and the proper functioning of state government—something that concerns every Hoosier.”

During committee hearings on HB 1123, several constitutional law experts, including Frank Sullivan, a former Indiana Supreme Court justice and current professor at Indiana University’s Robert H. McKinney School of Law, testified that the bill was unconstitutional; but even then, the bill moved through the legislature and ultimately became law.

“In my opinion, the provisions in HB 1123 that create a new ‘emergency session’ of the General Assembly to be convened by the Legislative Council are unconstitutional,” Sullivan said. “The Constitution provides for two and only two types of legislative sessions: the regular annual session and special sessions called by the governor when in his opinion ‘the public welfare shall require it.’”

But Walker says he believes the court will uphold the measure, now that a statute has been approved that allows state lawmakers to convene themselves in an emergency session.     

Lauer was one of 47 co-authors of HB 1123, while Koch was listed as a Senate sponsor. While vetoed by Holcomb on April 9, state lawmakers voted to override the veto less than a week later.

— The Associated Press and the Statehouse File contributed to this story.

  

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Senate Bill 5 -introduced Jan. 7 by Sen. Chris Garten, R-Charlestown, Sen. Ron Alting, R-Lafayette and Sen. Mark Messmer, R-Jasper. Passed by Senate 37-12. Passed by House 65-29. Vetoed by Indiana Gov. Eric Holcomb on May 4.  Lawmakers may vote to override the veto when they convene themselves on Monday.    

Provides that if a local order addresses an aspect of a declared emergency that is not addressed by an executive order – or if a local order addresses an aspect of a declared emergency more stringently than an executive order, the local order may not take effect, or remain in effect, unless the local order is approved by the county legislative body (in the case of a county health department) or by an ordinance adopted by the city legislative body and approved by the mayor (in the case of a city health department).

House Bill 1123 – introduced Jan. 4 by State Rep. Matt Lehman, R-Berne. Approved by House 64-33. Approved by Senate 37-10. Vetoed by Gov. Eric Holcomb on April 9. Lawmakers override veto on April 15. Bill immediately become Public Law 64. Holcomb has filed a lawsuit challenging the constitutionality of the legislation.

Provides that the General Assembly may convene in an emergency session if the legislative council adopts a resolution making certain findings concerning a state of emergency declared by the governor. Specifies the maximum length of an emergency session. Provides that in an emergency session the General Assembly may enact only bills relating to the agenda stated in the legislative council’s resolution. Provides that the general assembly may adopt concurrent resolutions and each house may adopt simple resolutions during an emergency session.

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