Powers said that except in very limited situations, "an officer of the executive branch of government has no right or power to declare an act of the Legislature to be unconstitutional or to raise the question of its constitutionality without showing that he or she will be immured in person, property, or rights by its enforcement."

He concluded that if the Legislature proposes and passes an alternative ballot measure, "all state executive branch officers must presume that the competing measure is constitutional, they must treat is as a valid legislative measure, and they must perform their constitutional and statutory duties based on that presumption unless and until the judicial branch declares otherwise."

In a statement late Tuesday, Roberson and five other Senate Republicans who support pursuing higher mining levies as a better option that the teachers' business tax proposal said they'll continue to work with Democrats to forge a valid ballot option.

"Despite what we view as incomplete, unsupported and unpersuasive opinions expressed by those outside the legislative branch of government, the Legislature has the authority to approve, by statute, an alternative measure that competes with the fatally flawed margins tax, with the measure receiving the most votes becoming law if passed by a majority of voters," the statement said.

"We believe that voters should be given the opportunity to pursue that course."

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