The Governor’s office has been taking unnecessary and questionable steps to circumvent Legislative processes regarding government spending and budgeting.
Recently, it was reported that the Governor directed state agencies to cut $280 million from their operating expenses. He took these steps without Legislative input, in direct conflict with the budget passed by the Legislature, purportedly to free up additional funds that he intends to move at his own discretion.
Similarly, in late April, the Governor issued Executive Order 24-03 in which the Governor ordered that, beginning on June 1, 2024, any job openings at the state that have been unfilled for 90 days or more will be eliminated. The Governor also ordered any funds allocated to those positions be “redistributed at the direction of the Budget Administrator.”
But moving any of those funds without Legislative approval is unconstitutional.
The Nebraska Constitution gives the Legislature absolute power over appropriations. State funds cannot be used unless the Legislature specifically appropriates funds for a particular purpose. If the Governor uses funds allocated for one purpose to fulfill another purpose, the Governor has encroached upon the powers of the Legislature and violated the Constitutional requirement of Separation of Powers.
The first round of job cuts came in the beginning of June, with only half of the proposed cuts being made. Meanwhile, state agencies have been slashing spending, reducing their capacity and resources to meet the needs of Nebraskans. While it is unclear whether the Governor has directed the Budget Administrator to move any of the funds specifically allocated to government agencies, Executive Order 24-03 purports to claim that power by directly ordering that “the funds allocated to those positions shall be redistributed at the direction of the Budget Administrator.” Any such “redistribution” without the Legislature’s explicit permission would be unconstitutional.
Unfortunately, this is not the first example in recent history of Nebraska’s Executive Branch overstepping its authority with regard to appropriations. In the summer of 2020, Nebraska’s Governor unilaterally directed the spending of over $500 million of state Coronavirus Relief Funds, provided by the federal government in the CARES Act, without a specific appropriation from the Nebraska Legislature.
The Constitutional provision requiring a specific appropriation by the Legislature promotes democracy by ensuring that Nebraskans have their interests represented by their duly elected senators who are more able to craft appropriations that meet the needs of their constituents.
Our constitution deliberately provides the power of appropriation to the Legislature. The current special Legislative session could be an opportunity for the Legislature to move some of these funds as the Governor wants. But without Legislative action, any attempt by the executive branch to subvert the requirement of a direct appropriation is a threat to our democracy. We will be watching to ensure that any such unconstitutional act does not take place.