The Indiana legislature’s power to act during a public emergency when it’s not in session is at stake in a lawsuit heard before the state Supreme Court Thursday.
The core issue is whether the Indiana Constitution gives the governor sole authority to call a special session of the legislature.
Lawmakers, represented before the court by Solicitor General Tom Fisher, argue it doesn’t.
“This is a representative democracy. We like it when our legislators come together and resolve hard questions," Fisher said. "We like it when they debate these things and come up with statewide solutions.”
Justice Christopher Goff, though, said he "struggled" with Fisher's argument.
"The governor is singularly enabled to respond to crises, emergencies," Goff said. "And it seems to me that the language of the Constitution reserved this ability to call a special session, recognizing that unique ability."
The governor sued to strike down a 2021 law, HEA 1123, that would allow the legislature to call itself into session during a public emergency. His attorney Richard Blaiklock said the governor isn’t arguing that it’s a bad idea – just that a law can’t decide it.
“That question is left for a proper constitutional amendment for the decision to be left to the voters of Indiana, through that process,” Blaiklock said.
Much of the hearing, though, focused on procedural issues, centered on whether the governor should be allowed to sue in this case.
Early on, Justice Geoffrey Slaughter noted that the law in question doesn’t stop the governor from using his power to call a special session.
“There’s nothing about 1123 that prevents him from doing that right away," Slaughter said. "So, how is he impaired? How is he harmed?”
Join the conversation and sign up for the Indiana Two-Way. Text "Indiana" to 73224. Your comments and questions in response to our weekly text help us find the answers you need on statewide issues.
Yet later on, Slaughter questioned Fisher about his position that the governor is barred from suing the legislature, which Slaughter called “astonishing.”
“So, you’re saying that Eric Holcomb as governor can’t bring the suit but Eric Holcomb as private might well?” Slaughter asked.
And that encapsulates why it’s hard to predict the outcome of the case merely from the justice’s questions.
There’s no timetable for the court's ruling.