With the possibility of a special session of the Nevada Legislature comes the speculation about what will be and what won’t be on the agenda. Article 5, Section 9 of the Nevada Constitution provides that the Governor “shall state to both houses when organized, the purpose for which they have been convened, and the Legislature shall transact no legislative business, except that for which they were specially convened, or such other legislative business as the Governor may call to the attention of the Legislature while in Session.”
There has been a long-running, if subdued, dispute between the Executive and Legislative branches over exactly how far the Governor’s power extends to control the agenda of a special session. The issue has the potential to come to a head if the Governor and Legislature cannot agree in advance how to best resolve the growing budget deficit in Nevada. The Governor, who is firmly anti-tax, will likely include language in his proclamation prohibiting the Legislature from considering new taxes, raising existing taxes, or otherwise impacting existing tax exemptions. Legislative lawyers will likely take the position that while the Governor can call a special session to address a budget deficit, to tell the Legislature how they can or cannot address that deficit is tantamount to lawmaking and therefore beyond the scope of the Governor’s executive authority. Similar arguments were raised recently in New Mexico when Governor Richardson included a similar prohibition in his call for a special session.
Of course, heading into an election year the Legislature as a whole may avoid delving into the intricacies of a constitutional debate, making the issue moot by deciding not to consider tax increases in any event. In that case, we may have to wait until another day to see just how far the Governor’s authority extends under Article 5, Section 9.