After a year of pandemic, state legislatures look to strip Governors of emergency powers

I see three ways to limit emergency powers ex ante.

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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.

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  1. It’s really simple.
    Any declaration of an emergency by an elected executive also constitutes a called session of the relevant legislative body.
    Unless the legislature approves the edict exactly as promulgated within 14 days, it becomes null and void. If approved exactly as promulgated, it is valid for no more than 60 days.
    No emergency order may be extended or reissued for any reason.

    1. I don’t think I want 200 elected representatives, many of whom will use it as an excuse to trade horses on other issues, standing in the way of quick action in a real emergency.

      There were governors who mishandled Covid. But Covid was a once in a lifetime rare exception. Most of the time when a governor calls an emergency it’s for a natural disaster of some sort where there’s no real question it’s an emergency. Don’t make long term policy based on a single once in a lifetime event. Because if you do, next time there’s a flood, the necessary reaction to it will be paralyzed by 200 politicians acting like politicians.

      1. Krychek, Longtobefree made a specific proposal – a 14 day sunset (and I wish more people would do that, vs. vague talking points).

        Do you think it should be, say 90 days instead? Or that there shouldn’t be a sunset period at all?

        I also want executives to be able to react to emergencies, and I think such actions are generally considered to be necessary. Mayors of governors routinely do things like establish curfews after natural disasters, without much objection. Everyone realizes you can’t get the legislature or city council together to pass a law on a few days notice. But doesn’t that justification dissipate once enough time has passed for the legislature to have acted? A sunset provision of N days seems to address that, for some number N.

        1. It’s one thing to give the executive the temporary power to act in an emergency when time is of the essence but that should not be a perpetual blanket of power. I think a time limit for any declaration of emergency unless ratified by the legislative branch is proper and prudent.

        2. 30 days, max. And to renew requires a recorded legislative vote.

        3. I could live with a sunset period of 14 days. Most emergencies will be over with by then. But I would allow the governor to unilaterally extend it if necessary, with the provision that the legislature has the authority to override the extension. I’m still nervous about giving 200 politicians the ability to use it as an opportunity to trade horses.

          1. “I’m still nervous about giving 200 politicians the ability to use it as an opportunity to trade horses”

            I agree horse trading is a bug, not a feature of the legislative process. But what’s different about emergencies, once N is large enough that the legislature has time to act?

            There are a lot of people who think climate change is an emergency, but whether or not one believes that, it is not an emergency that requires action in a time period that precludes legislative action. Can a governor proclaim ‘because climate change is an emergency, I am going to start building nukes without environmental review’, and keep renewing that indefinitely?

            Or social security … the actuaries have been pointing out the looming problems for decades now, and congress keeps ignoring it. Can the president just eventually impose his preferred solution unilaterally by decree?

            It’s one thing to give emergency powers for an interval that is too short for the legislature to assemble, but once the legislature can assemble, the fact that it chooses to maintain the status quo seems controlling to me, even if it makes that decision by inaction.

            (how do you feel about warmaking – do you like the modern ‘the pres can go to war when, where, and as long as he likes unless congress stops him’ or the older ‘other than, say, sending the marines to evacuate an embassy, the pres has to get a declaration of war’ model?)

  2. Who would like to see Gov. Whitmer get a bare ass spanking? To deter.

    You are not … in …Communist … China. Don’t you ever… ever… ever.

    1. Live-streamed in UHD.

  3. The sunsetting provision is a great place to negotiate from. responses to emergencies are by definition, short term.

  4. “Governors, unsurprisingly, invoke the need for a unitary executive”

    No governor is a “unitary executive”.

    All states have other elected constitutional officers who have executive power and are not subordinate to the governor.

    Plus, state law is enforced by local prosecutors who generally are not subject to control by the governor.

    1. Alaska’s only statewide elected officials are the governor and lieutenant governor, the cabinet is appointed by the governor, and all the state prosecutors work under the gubernatorially appointed attorney general. Seems pretty much as unitary as the federal executive branch.

      1. Thought I should hedge on the “all”.

      2. And in Florida, the governor can remove a prosecutor from a specific case for pretty much any reason at all. One state attorney was in fact pulled off death penalty cases because she refused to seek the death penalty.

  5. I am dismayed by all the alternatives.

    In principle, in most cases, a generally defined, brief emergency power for a governor makes sense. After that, the legislature steps in to review the particulars. Mostly—still in principle—that looks pretty good.

    It has one problem—less likely but possible—which is that some emergencies could prove so disruptive that getting legislative action by a particular deadline would not be doable. Those would be cases featuring very broad geographic extent, and long-lasting threats. Cases of invasion or insurrection, or more-deadly pandemics than Covid-19 could serve up such crises.

    In practice—with an eye to realistic assessment of today’s political vices—things look more challenging. Legislators’ cynical disregard of public welfare has become so ingrained that many of them, sometimes majorities, would opportunistically demand harmful policies, even disastrous policies, if they thought they could thereby make a president or a governor fail at his task, and thus harm opponents’ long-term political standing. That kind of legislative cynicism looks nearly inevitable where objectively necessary policies to ameliorate disaster turn out hard to explain, or broadly unpopular.

    Consider also contrasting methods used by executives and legislatures. Skillful executives practice energy and dispatch. Skillful legislators practice foot-dragging and delay. Those legislative characteristics are a poor fit for the task of managing disaster.

    In any consequential emergency, I would prefer an over-empowered executive held in ultimate check by a legislature with sufficient power to impeach and remove him. Too much empowering today’s legislators to practice the inherently executive function of managing a disaster seems unwieldy and unwise.

    1. If legislatures can’t be presumed to represent the welfare of the people who elected them, why not dispense with legislatures and have a dictator instead?

      Was it Winston Churchill who said that democracy is the worst form of government except for all the alternatives?

  6. All states need to have recall provisions — most don’t.

  7. I think a sunset provision, whereby the legilsature has to reauthorize an emergency measure after perhaps 30 or 60 days, would be reasonable here.

    Regardless of what one thinks of rhe merits of the particular policies, one has to keep constitutional structure in mind. Far-reaching social changes lasting months or years are more legislative than executive in character. Long-lasting changes should get the legislature’s blessing.

  8. I think this is very reasonable. The point of emergency powers is that they’re supposed to be for the times that immediate action is required and the full government doesn’t have time to meet. That’s not the case of the Covid crisis now, although it was in the beginning. Let governors keep their emergency powers, but they’re only good for a certain amount of time. Anything lasting longer than that time period is subject to legislative approval. That gives governors the flexibility to act immediately in a crisis but brings the legislature back in as soon as reasonably possible.

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