AG opinion sought to break budget impasse

The bicameral conference committee debating two different versions of the fiscal year 2016 budget recessed yesterday to await an opinion from the CNMI Attorney General on the Senate’s proposed use of earmarked funds set outside the pot of funds made subject to appropriations by Gov. Eloy S. Inos.

The House of Representatives maintained their position yesterday that the Senate’s appropriation of funds set aside for the Marianas Visitor Authority is unconstitutional.

Senators, likewise, submitted a memo to their counterparts that reaffirmed their legal standing on the matter.

In effect, the Senate and House maintained their positions from last Thursday, when the budget conference first met.

Lawmakers have about three weeks to resolve their budget differences and settle on a budget for Inos’ approval before the fiscal year ends on Sept. 30.

House budget conference chair Rep. Antonio Sablan (Ind-Saipan) opened discussion yesterday, saying it was necessary to resolve their differences on the reallocation of earmarked funds.

Senators propose to direct MVA to move about $2.5 million from their earmarked funds to assist other government agencies with utilities and equipment expenses, among others.

Sablan said all other items in the conference committee session are “secondary” to resolving these differences

Sablan said they maintaining that the Senate’s provisions in the budget are unconstitutional.

To this, Sen. Jude Hofschneider (R-Tinian), Senate conference chairman, said the Senate remains firm in their position, sharing with House lawmakers copies of a “legal analysis” of their position and pushing for a closed-door session to discuss the issue.

House lawmakers asked for a recess to read and review the Senate memo.

After the recess, Sablan told senators that if they did not object, he had prepared a draft letter to the CNMI Attorney General to seek his position on the matter.

“We have an impasse because our legal counsels are telling us differently,” Sablan said at one point in the ensuing discussion.

After further discussion debating points in the Senate’s budget provisions, the Senate agreed to let the House seek an opinion from the attorney general, and adjourned the meeting.

The Senate memo
The Senate acknowledges that a budget bill shall be limited to the “subject of appropriations,” but say that “appropriation” is neither defined in the Constitution nor the proposed budget bill.

The Senate states that all three provisions inserted by the Senate that invoked “notwithstanding clauses” to appropriate earmarked funds were acts of appropriation.

Citing “Black’s Law Dictionary,” the Senate defined appropriation as an act “authorizing the expenditure of public moneys and stipulating the amount, manner, and purpose of the various items of expenditure.”

The Senate said there provisions did not violate the one subject rule set by the NMI Constitution.

The Senate believes that any constitutional challenge on a supposed violation on their part would be “fruitless” because such challenge could not be declared unconstitutional or constitutional by the court. Appropriation bills are not subject to judicial review.

The legislative responsibility to set the budget bill is set by the Constitution and not subject to judicial review.

The Senate called it “ludicrous” if Senate provisions are made law and MVA choose not to follow the provisions because the agency thinks it is unconstitutional.

“If the court cannot declare a violation of the one subject rule unconstitutional, what authority does the MVA have to declare a violation of said rule unconstitutional? The MVA has no authority whatsoever to ignore an enacted law, let alone declare it unconstitutional,” the Senate memo states, referring also to email from MVA last week stating its belief that the Senate’s action violates the Constitution.