During the Spanish Flu pandemic a century ago, Indiana Gov. James P. Goodrich and President Woodrow Wilson barely played a role in the public response, despite the fact that it killed nearly 13,000 Hoosiers.
“Wilson never made a public statement about the pandemic. Never,” said John M. Barry, author of “The Great Influenza: The Story of the Deadliest Pandemic in History.” Profiles of Gov. Goodrich don’t even mention the pandemic that claimed the lives of millions of young adults nationally and nearly 13,000 Hoosiers. It was local public health officials who ordered mandates that required face masks, closed businesses and public events.
The role of governor has shifted, just as public health has improved dramatically during the past century. With the development of radio, then TV and now social media, governors had access to the bully pulpit where they could speak directly to their constituents on the crucial topics of the day.
The COVID-19 pandemic is not over, but Gov. Eric Holcomb’s stewardship has been challenged by the Republican super majorities of the General Assembly. In the four years since taking office in 2017, he had issued just two vetoes. Last week, he issued his third of the year.
Holcomb vetoed House Enrolled Act 1123, which allows the General Assembly to call itself into special session during a public emergency. Holcomb explained, “The legislation impermissibly attempts to give the General Assembly the ability to call itself into a special session, thereby usurping a power given exclusively to the governor under Article 4, Section 9 of the Indiana Constitution. As such, it seeks to accomplish that which the Indiana Constitution clearly prohibits.”
In a rare intra-party showdown with Republican Attorney General Todd Rokita, the two are sparring over the governor’s ability to hire legal counsel to challenge a veto override. As the state’s top legal official, Rokita claims it is he who “shall have charge of and direct the prosecution of all civil actions that are brought in the name of the state of Indiana.” Both Rokita and Holcomb’s offices confirm that the AG rejected the governor’s attempt to hire outside legal counsel.
Former Republican attorney general Greg Zoeller told the Fort Wayne Journal Gazette, “I think there’s a good argument to say the governor can’t go to court without the consent of the attorney general.”
Legal scholars are debating whether Rokita can represent both Holcomb and the General Assembly. Former Indiana Supreme Court Justice Frank Sullivan, suggested Rokita recuse himself, since he has state government “clients on both sides of the issue.” Senate President Pro Tem Rodric Bray told the Journal Gazette that he would be “comfortable with the attorney general representing us on this issue,” but added that it will be difficult for Rokita to represent both sides. “You can try to put a paper wall up, but that doesn’t make much sense.”
It will take the Indiana Supreme Court to sort this all out.
Holcomb also vetoed Senate Enrolled Act 5, which would give county commissioners the right to overrule county health official mandates. “Throughout the pandemic, state and local leaders struck a careful balance between protecting both lives and livelihoods to ensure our communities would come out of this pandemic as strong as possible,” Holcomb said, noting that a year after he shut down “non-essential businesses” the state has rebounded to a 3.9% unemployment rate and $2 billion in forecast extra state revenues.
“It is hard to express the rapidity needed in the early days of the of the pandemic, particularly on the local level,” Holcomb explained. “Local health officials and their departments must frequently make urgent, complex decisions to safeguard public health when time is of the essence and expertise is critical.”
State Sen. Chris Garten (R-Charlestown) who authored SEA 5, said, “When unelected officials are empowered to such a level as to limit religious liberty, shutter houses of worship, choose which businesses may operate and which must close, and impose fines on Hoosiers for living as free men and women, there must be a structural check and balance in place. Senate Enrolled Act 5 serves as that critical check and balance.”
Lawmakers, who passed both HEA 1123 and SEA 5 by wide margins, are expected to override Holcomb’s vetoes on Monday. The state’s 1851 Constitution requires a simple majority to override a governor’s veto, making the state’s top executive much weaker than a U.S. president, where a congressional veto override requires a two-thirds majority.
Former House speaker John Gregg, who lost to Holcomb in 2016, backs his former rival. “We need future governors to be able to exercise the authority they have been given, not have their hands tied. We do not need a full-time legislative body to micro-manage all aspects of state government.”
Gregg adds, “Can you imagine the chaos and the danger to the public that would occur if Hoosiers had to wait for 150 part-time lawmakers, or even a subset of them, to assemble, develop a plan and then debate it before state government responded to an urgent crisis?”
Hoosier voters gave Holcomb an emphatic thumbs up last November, reelecting him 56.5% to 35.1% over Democrat Woody Myers (a former state health commissioner), and Libertarian Donald Rainwater at 11.4%, eight months after taking the dramatic actions during the pandemic.
All this has occurred before this pandemic has concluded. The General Assembly was acting on behest of its constituencies, some of whom chafed over business closings, restaurant capacity limits, and mask mandates. Gov. Holcomb told me last October that the only pandemic action plan on state shelves dealt with an ordinary flu outbreak.