SANTA FE, N.M. — The New Mexico Supreme Court is hearing arguments for and against the governor’s controversial public health order that hopes to limit gun violence and drug abuse in the metro.

The group challenging the order includes GOP House and Senate members, the state Republican and Libertarian parties, the National Rifle Association, and several Bernalillo County residents.

The order went into effect in September 2023, limiting where firearms can be carried in Bernalillo County. The public health order also adds more state police officers in the metro and requires drug testing for wastewater at multiple state-funded agencies.

There was some confusion at the beginning of the hearing Monday. Chief Justice Shannon Bacon asked the attorney representing the petitioners why they were there, and if the order was even still in effect.

The justices were apparently not aware the governor had extended the public health order on Dec. 29 for another 30 days. Once they got that squared away, they had even more questions for the attorneys, including if the petitioners were even blaming the right person.

“So, whose fault is this? Because I think you know, at least for your clients, we think of it in terms of you know, who’s outside the boundaries. To me, it feels more like a legislative problem, because they’re the ones who wrote this. And we’re very, very deliberative about it. As opposed to the governor saying, OK, well, they gave me this power I’m going to use it.” Chief Justice Bacon asked.

The petitioner’s attorney, Jessica Hernandez, argued the governor is using this public health order improperly, saying gun violence and drug abuse are matters of public “safety” – not public health.

“If we look at the plain language of the statute, a public health emergency response act is meant to deal with public health issues its provisions are talking about quarantine and isolation public health facilities and supplies,” Hernandez said.

But both the justices and the governor’s counsel, Holly Agajanian, pointed out the language in the statute is much broader, saying the governor can issue these orders if there is a “dangerous condition or a toxic agent” impacting the public. Agajanian says Gov. Michelle Lujan Grisham is not the only one who has deemed gun violence and drug use an emergency.

“There are public health experts, Secretary Allen, somebody whose job and life has been spent analyzing such things, who has also said this is an emergency. So, the policy expert has agreed in this case that this is an emergency.” Agajanian said.

The justices also asked both attorneys a lot of questions concerning definitions – including defining what an “imminent threat” is, and whether or not this is a non-delegation issue or just a political debate. They also asked where is the line between public health and public safety.

But one question that stood out was a hypothetical situation presented by Chief Justice Bacon.

“DUI, no question, is a really significant problem in the state of New Mexico. Could the governor suspend the ability of New Mexicans to drive in San Juan County or McKinley County, because of that emergency? I can conceive of almost anything being a public health emergency if I adopt your client’s perspective, and maybe that’s what the Legislature did,” Chief Justice Bacon said.

But Agajanian argued that’s a hard comparison to make. While the initial public health order had a similar wide-sweeping ban on guns, it has since been rolled back and is only banning guns in parks and playgrounds where children play – where she says guns have no place to begin with.

“That is not the universe we’re looking at now. And I would actually say, right now, any intrusions on the individual liberties of our citizens are de minimis, based on this particular public health order. And the executive orders, there are, and I would note, even in the in the petitions, nobody said, you know, that they have been injured in any actual way as a result of this,” Agajanian said.

But the petitioners and their attorney argue their rights have been impacted by this public health order and it is crossing into territory that should be handled by the legislative branch – not the governor.

“Because this is such a quintessentially legislative area, public safety, that and if when we get to the language of the statute is very clear, just from the plain language of the statute, that this was never what the legislature intended as far as the delegation of emergency powers to the executive,” Hernandez said.

After more than an hour of oral arguments, the state Supreme Court adjourned, saying they will either issue a ruling or publish their opinions “as time permits.”

We will continue to follow this case as those decisions are made. Stay with KOB 4 Eyewitness News and KOB.com for updates.