Time to pull back on emergency powers for governors
Last Friday, Democratic state senator John Mannion of New York called for an end to Governor Andrew Cuomo’s emergency powers. Mannion’s call came after it was revealed that the Cuomo administration had kept information from the public about COVID-19 deaths that occurred within the state’s nursing homes.
Mannion isn’t the only state lawmaker in the country looking to restore the proper balance between the legislative and executive branches after close to one year of unilateral rule by most U.S. governors under emergencies declared in response to the coronavirus pandemic. Indeed, the battle to rein in runaway emergency authority is being waged across the country. As it should be. The last year has left the power balance dangerously out of whack, and it’s past time to fix that.
Americans witnessed their governors wield emergency power in unprecedented ways last year. At the peak of state-ordered lockdowns in response to COVID-19, 316 million Americans across 42 states lived under a stay-at-home order. Businesses and places of worship were ordered closed. Millions lost their jobs and savings. Elective surgeries were canceled or delayed as thousands of cancer screenings and organ transplants went unperformed.
Throughout 2020, many state legislatures were sidelined as their chief executive assumed total control of the coronavirus response. Few, if any, of the orders issued by governors were subject to the deliberative scrutiny of our state legislatures. But state legislatures have begun to fight back. At least 16 states (Alabama, Arizona, Idaho, Indiana, Kentucky, Maine, Maryland, Minnesota, Montana, New Hampshire, New Mexico, North Dakota, Pennsylvania, South Carolina, Utah, and Washington) have pending legislation to reform emergency executive power. Elected officials in other states, including New York, North Carolina, Texas, and West Virginia have signaled that they will submit legislation on the issue. And lawmakers in Michigan, Missouri, and Ohio are actively debating bills that deal directly with their governor’s existing COVID-19-related orders.
Such efforts are welcome. Indeed, the pandemic and many governors’ responses to it have only just begun to awaken lawmakers and the general public to the true scope of emergency power — and to how easily it can be abused absent the inherent checks and balances that exist in government outside of an emergency. Most states are not currently well-equipped to protect the liberty of their citizens, as exhibited in a new report by the Maine Policy Institute that ranks states by legislative–executive emergency-power balance. The majority of these jurisdictions grant expansive power to the chief executive during an emergency and give lawmakers no opportunity to review or override the governor’s emergency actions. Unfortunately, the checks and balances and separation of powers that normally exist in American government seem to disappear in some states under an emergency declaration.
In nearly one-quarter of the states, only the governor has the power to issue or terminate an emergency. The legislature is not required to concur with the declaration. This gives the chief executive sole discretion over where and when an emergency exists, and when it ceases to exist. This is true in Vermont, Washington, Ohio, and Hawaii, all of which are among the worst-ranking states when it comes to the potential to abuse emergency power. And Vermont is the worst of the bunch: It allows some emergency orders to remain in effect up to 180 days — yes, six months — after the emergency is terminated.
If the people can’t contact their elected officials to end an emergency, and thus end the use of emergency power, what stops a chief executive from continuously renewing the declaration and using this power in perpetuity? This accurately describes what many Americans have witnessed over the last year. This is an untenable situation that threatens the very idea of representative government.
At the time most of these state laws were constructed, few could have predicted they would be used to micromanage every interaction within society in the face of a pandemic. Indeed, most of these laws were established to help states respond to a natural disaster or terrorist attack, not a public-health matter like COVID-19.
Though no state is perfect, some do enforce necessary checks and balances on their governor’s emergency power. Kansas and South Carolina outperform the rest of the nation here because, in both states, the governor must earn legislative approval for an emergency to persist beyond the first 15 days. In this regard, Kansas leads the pack: Its legislature may only approve one 30-day extension of the emergency declaration after the first 15 days, and from there requires a unanimous vote of the State Finance Council for an emergency to continue.
Reforms all states should consider include requiring executive orders to be narrowly tailored, and challenges of these rules to receive expedited judicial review. Limiting the duration, applicability, and scope of these orders would result in fewer unintended consequences and promptly give those who feel they’ve been wronged by government their day in court.
All states should require a legislative-concurrence vote to extend an emergency declaration, and each state legislature should have the power to nullify individual orders issued by the governor. This is the easiest and most effective way to ensure direct oversight of a governor’s actions, no matter which party controls the legislature or governor’s mansion.
Emergency power exists to allow chief executives to respond immediately to an imminent threat, and it’s meant to be used sparingly. It doesn’t exist to allow one person to control an entire state government for a year or more. Fortunately, there’s a clear appetite to reform emergency power across the country. We should hope that this leads states to reckon with the danger of concentrating power in the hands of a few and act to restore a proper balance of power in emergencies, even after the pandemic is behind us.
This commentary first appeared in National Review.