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In testimony before the Indiana Senate Rules and Legislative Procedures Committee on March 11, IU McKinney Professor of Practice Frank Sullivan, Jr., told state legislators that two proposals designed to curb Governor Eric Holcomb’s emergency powers are unconstitutional.

One proposed, contained in HB 1123, would permit the legislature to call itself into session to review action taken by the governor in an emergency. Professor Sullivan said this would be unconstitutional because Indiana Constitution entrusts authority to the governor alone for calling the legislature into session.

A second proposal, contained in SB 407, would automatically terminate a governor’s order declaring a statewide emergency unless the governor convened a session of the legislature within 30 days. Professor Sullivan said this would violate the Indiana Supreme Court’s long-standing precedent that it is unconstitutional for one branch of government to subject another branch to its “coercive influence.”

Professor Sullivan, who was a justice on the Indiana Supreme Court from 1993 to 2012, said if the senators thought “the governor’s power to handle emergencies needs to be reduced, [you should] do it in a way that the Constitution permits. You have plenty of options in that regard. And if you decide that the legislature does need power that the Constitution does not now give it, the right way to do that is by a constitutional amendment, not an unconstitutional bill.”