The supreme executive power of the state shall be vested in the governor, who shall take care that the laws be faithfully executed. He shall be commander in chief of the military forces of the state, except when they are called into the service of the United States. He shall have power to call out the militia to preserve the public peace, execute the laws, suppress insurrection and repel invasion.

ANNOTATIONS

Cross references. — For authorized purposes of state indebtedness, including suppression of insurrection and public defense, see N.M. Const., art. IX, § 7.

For the militia generally, see N.M. Const., art. XVIII, §§ 1 and 2.

For heading cabinet, see 9-1-3 NMSA 1978.

For governor's power to call out the militia, see 20-2-6 NMSA 1978.

Comparable provisions. — Idaho Const., art. IV, §§ 4, 5.

Iowa Const., art. IV, §§ 7, 9.

Montana Const., art. VI, §§ 4, 13.

Utah Const., art. VII, §§ 4, 5.

Wyoming Const., art. IV, § 4.

Executive privilege. — The executive privilege in New Mexico, which derives from the constitution and which is reserved to and can be invoked only by the governor, extends only to documents that are communicative in nature, that are made to and from individuals in very close organizational and functional proximity to the governor, and that relate to decisions made by the governor in the performance of the governor’s constitutionally-mandated duties. Republican Party of N.M. v. New Mexico Taxation & Revenue Dep't, 2012-NMSC-026, 283 P.3d 853.

Application of the executive privilege to the inspection of public records. — Courts considering the application of the executive privilege to a request for the inspection of public records under the Inspection of Public Records Act (Chapter 14, Article 2 NMSA 1978) must independently determine whether the documents at issue are in fact covered by the privilege and whether the privilege has been invoked by the governor, to whom the privilege is reserved. Courts are not required to balance the competing needs of the executive and the party seeking disclosure. Where appropriate, courts should conduct an in camera view of the documents at issue as part of their evaluation of the privilege. Republican Party of N.M. v. New Mexico Taxation & Revenue Dep't, 2012-NMSC-026, 283 P.3d 853.

Executive privilege did not apply to drivers’ license records. — Where petitioners requested public documents from the motor vehicle division relating to the issuance of drivers' licenses to foreign nationals and to an audit of the license program ordered by the governor; the motor vehicle division redacted information pursuant to executive privilege; the redacted documents included communications regarding New Mexico’s negotiations with the Mexican government regarding access to identity documents and discussions related to implementing the audit of the driver’s license program; the documents at issue were principally internal emails between staff of the motor vehicle division, not communications with the governor or the governor's immediate staff; and the motor vehicle division, not the governor, asserted the executive privilege; the documents at issue did not qualify for the executive privilege. Republican Party of N.M. v. New Mexico Taxation & Revenue Dep't, 2012-NMSC-026, 283 P.3d 853, rev'g 2010-NMCA-080, 148 N.M. 877, 242 P.3d 444.

Governor is sole judge of facts that may seem to demand aid and assistance of military force of state. State ex rel. Charlton v. French, 1940-NMSC-010, 44 N.M. 169, 99 P.2d 715.

To provide for public defense embraces considerations of preparedness as well as execution. State ex rel. Charlton v. French, 1940-NMSC-010, 44 N.M. 169, 99 P.2d 715.

Power of militia supersedes civil authorities. — Where governor, seeking to quell insurrection, calls out the militia, by executive process, and puts them in charge, such military forces do not act as sheriffs or deputy sheriffs, but their power supersedes the civil authorities. State ex rel. Roberts v. Swope, 1933-NMSC-097, 38 N.M. 53, 28 P.2d 4.

Other provisions. — This section is in pari materia with N.M. Const., art. IX, § 7 (authorizing state indebtedness for certain purposes, including the suppressing of insurrection and public defense) and art. XVIII, § 2 (relating to the organization, discipline and equipment of the militia). State ex rel. Charlton v. French, 1940-NMSC-010, 44 N.M. 169, 99 P.2d 715.

Governor entitled to legislative immunity. — Actions of the governor recommending state appropriations for medicaid waivers, revamping the state personnel system and plan for growth in the medicaid programs were legislative in nature and therefore the governor is entitled to legislative immunity. Lewis v. New Mexico Dep't of Health, 275 F.Supp.2d 1319 (D.N.M. 2003).

Governor did not have authority to enter compacts with Indian tribes. — The governor could not rely on statutory authority to enter into compacts and revenue-sharing agreements with Indian tribes which would permit gaming on Indian lands pursuant to the federal Indian Gaming Regulatory Act. State ex rel. Clark v. Johnson, 1995-NMSC-048, 120 N.M. 562, 904 P.2d 11.

Constitutional powers of the legislature and executive branches when administering federal funds. — When federal funds come with specific conditions attached, the executive branch is merely administering the funds consistent with the requirements established by the federal government, and no legislative appropriation is required. If a state retains wide discretion, then such funds must be appropriated—a function constitutionally reserved for the legislature. State ex rel. Candelaria v. Grisham, 2023-NMSC-031

Governor did not have the authority to administer federal funds provided to the state for COVID-19-related financial assistance. — Where the federal government, through the federal American Rescue Plan Act of 2021 (ARPA), provided approximately $1.75 billion in COVID-19-related financial assistance to New Mexico, and where the New Mexico legislature attempted to appropriate the ARPA funds through the General Appropriation Act of 2021, and where the governor vetoed the portions that related to ARPA funds, asserting that the legislature lacked the authority to direct the executive’s administration of federal funds, and where the governor also spent approximately $600 million of the $1.75 billion in ARPA funds, and where petitioners filed suit against the governor, seeking a writ of mandamus and stay prohibiting her from expending or appropriating any additional ARPA funds, the New Mexico Supreme Court issued a prohibitory writ of mandamus and order providing that the governor and state treasurer shall not transfer, encumber, commit, expend or appropriate any additional ARPA funds absent legislative appropriation, because the amount of discretion the federal government left to New Mexico in allocating the ARPA funds compelled a conclusion that the federal funds were subject to legislative appropriation. State ex rel. Candelaria v. Grisham, 2023-NMSC-031.

Governor has almost unlimited authority to suppress insurrection, and is himself the judge as to the local condition requiring it. 1919 Op. Att'y Gen. No. 19-2416.

Governor's authority not to be invaded by legislature. — Any attempt by the legislature to invade the authority vested in the governor by virtue of this section would be interference by one department of the government with another, contrary to Article 3 of the constitution. 1951 Op. Att'y Gen. No. 51-5438.

Limitation imposed by former 20-6-2 NMSA 1978, prior to its 1953 amendment, on the issuance of certificates of indebtedness by the governor without calling a special session of the legislature, was not in conflict with this section as it did not interfere with the governor's power to call out the militia. 1951 Op. Att'y Gen. No. 51-5438.

Governor does not have authority to legislate regulation of massage practitioners and he cannot delegate it to a massage board. 1980 Op. Att'y Gen. No. 80-09.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 38 Am. Jur. 2d Governor § 4; 53 Am. Jur. 2d Military and Civil Defense §§ 3, 32, 34.

Mandamus to governor, 105 A.L.R. 1124.

Prohibition as means of controlling action of governor, 115 A.L.R. 14, 159 A.L.R. 627.

Devolution, in absence of governor, of veto and approval powers upon lieutenant governor or other officer, 136 A.L.R. 1053.

War, constitutionality, construction and application of statute conferring emergency powers on governor during, 150 A.L.R. 1488.

Governor's authority to remit forfeited bail bond, 77 A.L.R.2d 988.

6 C.J.S. Armed Services § 288 et seq.; 81A C.J.S. States § 130.