The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
We are approaching the first anniversary of the pandemic in the United States. Over the past year, Governors have exercised sweeping authority to regulate all aspects of human existence. In the early days of the pandemic, I held back my criticism of these acts of suspension and executive lawmaking. I was willing to give Governor's the benefit of the doubt. In the midst of a crisis, the unitary executive is more vigorous and nimble than are legislature. But, as time lapsed, and we began to learn more about COVID-19, my criticisms grew. Legislature could have asserted themselves, but, by-and-large, they chose not to. And during this time, Governors have continued to expand their authorities, with few checks.
Now, state legislatures are starting to push back. The New York Times reports:
State lawmakers across the country, most of them Republicans, are moving aggressively to strip the powers of governors, often Democrats, who have taken on extraordinary authority to limit the spread of the virus for nearly a year.
In a kind of rear-guard action, legislatures in more than 30 states are trying to restrict the power of governors to act unilaterally under extended emergencies that have traditionally been declared in brief bursts after floods, tornadoes or similar disasters. Republicans are seeking to harness the widespread fatigue of many Americans toward closed schools, limits on gatherings and mask mandates as a political cudgel to wield against Democrats.
Lawmakers frame the issue as one of checks and balances, arguing that governors gained too much authority over too many aspects of people's lives. These legislators are demanding a say in how long an emergency can last, and insisting that they be consulted on far-reaching orders like closing schools and businesses.
Governors, unsurprisingly, invoke the need for a unitary executive to respond to fast-moving situations.
But governors respond that a pandemic cannot be fought by committee. They say that the same Republicans who politicized the science of the pandemic last year, following former President Donald J. Trump in waging a new battle in the culture wars, should not be trusted with public health.
"Governors have done the right things in trying times and circumstances, and their willingness and courage to do it is exactly why their authority has to remain with them," said Gov. Andy Beshear of Kentucky, a Democrat who is in a pitched fight with Republicans in the Legislature.
And this issue is not a strict red-blue divided. New York, a deep blue state, is looking to cabin the authorities exercise by Governor Cuomo:
On the other hand, it is not just Republican lawmakers who are seeking to strip powers from Democratic governors. In New York, Democratic leaders of the State Senate are moving to cut back some emergency powers granted last year to Gov. Andrew M. Cuomo, after the governor admitted to withholding data on deaths in nursing homes — a remarkable rebuke of the three-term governor by members of his party.
Governor Cuomo has been one of the most vigorous executives during the pandemic. In Agudath Israel v. Cuomo, the Second Circuit observed:
Governors have historically exercised this emergency authority in a limited and localized manner, most often in response to natural disasters such as severe 10 storms or flooding.Governor Cuomo's executive orders during the COVID-19pandemic, however, have been unprecedented in their number, breadth, and duration. From March to December 2020, he has issued almost 90 executive orders relating to the pandemic. Those orders affect nearly every aspect of life in theState, including restrictions on activities like private gatherings and travel.
I think there are three general approaches that legislatures should consider.
First, legislatures can prospectively strip Governors of emergency powers over specific areas. For example, in the wake of Hurricane Katrina, many state legislatures prohibited Governors from enacting emergency gun laws. As a result, Governors in Nevada and Kentucky were barred from designating gun shops as non-essential. (I talk about this history in my article). More recently, Ohio and Arkansas have enacted laws that restrict Governors from limiting the free exercise of religion. These sorts of laws need not be limited to red states. Blue states, for example, could also ensure that Governors protect abortion providers as "essential businesses."
Second, legislatures could impose sunset provisions on emergency decrees. In December, I proposed one model based on the War Powers Resolution:
In New York, the Governor's emergency powers continue unless the legislature disapproves. I would flip that presumption. The Governor's emergency powers would expire unless the legislature approves an extension of those powers.
The problems with the War Powers Act are legion, but at a minimum, this approach would ensure that emergency orders are not indefinite.
Third, legislatures could follow the model of the Congressional Review Act. Avi Weiss proposes this option in his Columbia Law Review student note. Here is the abstract of his paper:
One of the side effects of the COVID-19 pandemic has been a precipitous increase in unilateral executive lawmaking by governors across the country. These actions engendered a storm of controversy as decisions relating to the virus quickly became tinged with political considerations, and this public dissent eroded the legitimacy of executive government. This Note discusses the trade-offs between democratic legitimacy and technocratic agility in executive emergency lawmaking. Drawing on a fifty-state survey, this Note shows how although drafters of these statutes attempted to balance executive power with legislative constraint, the statutes did not anticipate a long-duration, complex emergency like COVID-19. The statutes therefore generally do not allow substantive input by the legislature, and this has resulted in judicial showdowns and legislative pushback, eroding the legitimacy of executive action and more importantly endangering responses to future emergencies. This Note argues that in order to maintain robust and effective emergency power statutes in all states for future similar emergencies, states should revise the emergency power statutes to include more substantive legislative input, while retaining as much executive agility as possible. This Note suggests a model for such a revision to state statutes, inspired by the Congressional Review Act.
I hope legislature take these sorts of proposals seriously.