The coronavirus pandemic has caused major hardship in Nebraska, with unemployment soaring and people facing difficulty making ends meet. Recognizing the damage to be wrought by the pandemic, Congress passed the CARES Act, which included providing Coronavirus Relief Funds (CRF) for states. CRF are designed to help states respond to the pandemic and weather the first months of the crisis. The State of Nebraska received $1.25 billion in CRF, with $166 million automatically going to Douglas County.
The Nebraska Legislature has not convened since the passage of the CARES Act and the creation of the CRF. This means the Legislature has not specifically appropriated the state’s CRF. Nevertheless, on May 28, Governor Ricketts announced his intention to unilaterally utilize and spend Nebraska’s CRF, including $330 million for small businesses, $180 million for state and local governments, and holding $427 million in reserve.
What is Governor Ricketts’ authority for spending over $500 million without the Legislature convening to appropriate these funds? The Governor’s justification appears to rest on his emergency powers, and on general and vague appropriation language in LB 294, Sec. 257, passed in 2019 (almost a full year before the coronavirus pandemic, the CARES Act or the CRF).
The problem with this justification is that it is not constitutional.
The Nebraska Constitution specifically dictates the duties and obligations of our branches of government, and it ensures separation of powers so that one branch may not encroach on the role and prerogatives of another. Under our constitution, the Legislature has “absolute power” over appropriations, and no money can be drawn from the state’s treasury unless there is a specific appropriation made by law. According to the Nebraska Supreme Court, this means an appropriation must be particular, definite, precise, and must specify a clear purpose. The Legislature is further prohibited from delegating its authority to appropriate funds without setting clear standards.
It goes beyond the limits of Nebraska’s Constitution to claim an appropriation bill passed over one year ago, with vague and general language, can form a constitutional foundation for spending hundreds of millions of dollars without Legislative action. LB 294’s language is too vague to provide the required specific appropriation of CRF, and it is so indefinite and imprecise that it likely results in an unconstitutional delegation.
In short, past Legislative action, including LB 294, does not and cannot provide the required specific appropriation of CRF needed for the Governor to spend these funds. And there is no other legislative appropriation to point to that provides the requisite authority to spend CRF, which means the Legislature must formally appropriate CRF to provide the relief so desperately needed by Nebraskans.
The Legislature holds the spending power to ensure transparency, accountability, and broad public input into how tax dollars are spent. These resources are key to ensuring Nebraskans hit hardest by the pandemic – including people of color, frontline workers, meatpacking workers, and Nebraskans paid low wages or who have lost their jobs – receive the help needed not just to recover but to thrive. We hope to see the Unicameral take action in July when the session reconvenes to ensure this money is appropriated lawfully, that the public has an opportunity to properly weigh in on the process, and that Nebraska’s constitutional separation of powers is protected.
You can find a more full analysis of these issues here.