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SANTA FE 鈥� The rules governing New Mexico鈥檚 first-of-its-kind universal child care program could be struck down under a new lawsuit contending Gov. Michelle Lujan Grisham鈥檚 administration overstepped its authority in implementing them.

Specifically, the lawsuit filed in state district court in Albuquerque by Republican gubernatorial candidate Duke Rodriguez claims the governor鈥檚 administration illegally launched the state-subsidized child care program before getting approval from the Legislature to do so.

The lawsuit was also filed by two other plaintiffs 鈥� state Sen. Steve Lanier, R-Aztec, and Zachary Anaya, a Sandoval County resident with two children receiving state-funded child care.

鈥淢ichelle Lujan Grisham threw a ticking time bomb of potential fraud into New Mexico鈥檚 finances,鈥� Rodriguez said in a Friday statement. 鈥淲ith 鈥榩resumptive eligibility,鈥� no copayments, no income caps, and eligibility for non-citizens, this program will attract and create fraud of all kinds.鈥�

However, a spokeswoman for the Democratic governor pushed back against the claims, saying the state Early Childhood Education and Care Department had both the authority and the available funding to launch the universal child care program when it did so last November.

Lawmakers then approved a bill codifying the program in state law and setting financial safeguards 鈥� including possible co-pays and wait lists 鈥� during this year鈥檚 30-day session. That law is set to take effect May 20.

鈥淭his lawsuit demonstrates that Mr. Rodriguez misunderstands how state government works,鈥� Lujan Grisham spokeswoman Leah March told the Journal.

She also said the governor, who will step down from office at the end of this year due to term limits, is confident the courts will reject the plaintiffs鈥� 鈥渕eritless claims.鈥� 

New Mexico鈥檚 universal child care program drew national attention after it was announced last fall 鈥� including a mention on 鈥淪aturday Night Live鈥� 鈥� and the state published the rules governing the program in October. 

Previously, the state had provided child care assistance to working families making up to 400% of the federal poverty level 鈥� or about $128,600 per year for a family of four. The expansion of the program made New Mexico the first state to provide state-subsidized child care for all families, regardless of income levels.

However, the cost of the initiative has generated concern from some lawmakers. The bill approved by lawmakers this year authorizes up to $700 million to be taken from an early childhood trust fund over the next five years to help pay for universal child care. That trust fund was created in 2020 and has seen its value soar to nearly $11 billion due to record-setting oil production levels in New Mexico.

Rodriguez, who is one of three GOP candidates vying for the party鈥檚 nomination in this year鈥檚 open race for governor, is no stranger to courthouses.

He filed a lawsuit October challenging the governor鈥檚 line-item vetoes in a special session budget bill. That petition was ultimately dismissed by the state Supreme Court.

Previously, his cannabis company, Ultra Health, filed a successful lawsuit challenging the state鈥檚 medical marijuana plant limits.

As part of his latest lawsuit, Rodriguez said enactment of the universal child care program through the rulemaking process violates the state Constitution's separation of powers.

His attorney, former state Sen. Jacob Candelaria, backed up that argument by citing a 1998 state Supreme Court ruling that halted then-Gov. Gary Johnson鈥檚 administration from moving forward with its changes to public welfare programs without legislative approval.

In a twist, Rodriguez worked as Johnson鈥檚 appointed secretary of the Human Services Department at the time, and helped craft the public assistance changes under what was known as the PROGRESS program.

In a recent interview, Rodriguez told the Journal the 1998 ruling provides legal precedent for similar cases, while also saying he is not opposed to the concept of state-funded child care assistance.

鈥淚 support child care expansion,鈥� Rodriguez said. 鈥淏ut this wasn鈥檛 built to last 鈥� it was built to sound good.鈥� 

If a judge ultimately rules for the plaintiffs, it could force the Early Childhood Education and Care Department to start over on adopting rules for the universal child care initiative. Such a ruling could throw into doubt reimbursement rates for providers, employee pay scales and other details underpinning the program.

No hearings in the lawsuit had been scheduled as of Friday, according to court records. The case has been assigned to District Court Judge Elaine Lujan, who was appointed to the bench by Lujan Grisham in 2021.

Dan Boyd covers state government and politics for the Journal in Santa Fe. Follow him on X at or reach him via email at dboyd@abqjournal.com.