Though time is said to heal all wounds, the scars from the COVID-19 pandemic lockdowns remain fresh as the nation experienced executive overreach at the federal and state levels. It is important going forward for a proper check and balance to exist. The legislative branch must remain firmly in control of policy, even during times of an emergency.
There’s no question that in a real emergency, governors need broad powers to act fast. Legislative bodies take time to assemble, so they can temporarily transfer their powers to the executive in an emergency. But when problems do last for extended periods, it is the responsibility of legislators to debate the risks, benefits, and trade-offs of various long-term approaches.
Lawmakers may end up passing the very policies a governor would prefer, but they do it after deliberation as representatives of the people and do it in a public process. It’s the legislature, not the executive branch, that should make the laws we live under, and the executive – no matter the state or the person – is supposed to implement only laws passed by the legislature.
Gubernatorial emergency powers allow a rapid government response to emergencies, disasters, or threats. In the event of an emergency, there may be a need to enhance coordination, deploy the National Guard, reallocate state and federal funds, and even modify or suspend state statutes, regulations, and legal concerns. When actual disaster and emergency strikes the government’s ability to deploy resources quickly, efficiently, and unhindered is imperative to the successful management of the disaster.
Every state grants the executive branch, in the form of the governor, the authority to declare an emergency, be it a natural disaster or public health emergency. State statutes vary addressing the type of declaration, limits on the order, and legislative involvement. It is in these nuances that states vary significantly in the discretion granted to the governor and in many cases circumnavigate the lawmaking responsibility of the legislature.
There should be an ability for the executive to have a rapid response to actual emergencies. This awesome power, however, should be subject to meaningful legislative oversight. A comparison of our region shows that the states of Washington, Oregon, and Wyoming are very liberal in the use of emergency declarations. Limited use of emergency powers protects the impact of the clause and the ability of governors to make a difference in an emergency, instead of issuing statements that are routine acknowledgments without the meaningful tools and initiative to change the outcome of a disaster.
After multiple years of enduring an executive with little checks on emergency power, Washington state finally seems interested in adopting reforms. Washington is one of only four states that bestows unilateral authority to the governor in the declaration and maintenance of emergencies. Newly elected Governor Bob Ferguson indicated his interest in some reforms by saying: “Senator Braun – I hope to work with you to adopt reasonable limits on the Governor’s emergency powers. We can do that together.”
Some states in our region have put needed restraints on the executive branch to respect the balance of power shared with the legislature and judicial branches. However, for all of the states, there are varying degrees of improvement needed. Here are some of the best practices that should be required for the use of emergency orders:
Expire in a limited amount of time, unless ratified by the legislature;
Be narrowly tailored for compelling health and safety reasons, and be limited in duration, applicability, and scope;
Be subject to expedited judicial review, particularly when constitutional rights are at stake;
Signed by the governor for statewide orders that infringe constitutional rights;
Sunset quickly if the legislature is not in session or called into session, followed by a limited period for the legislature to ratify the order;
Cannot be reissued by governors if the orders have expired or the legislature rejected.
Lawmakers across the country should assess their state’s emergency power clauses and adopt the needed changes to maintain the separation of power. An excellent exercise for lawmakers is to consider the future level of comfort that would be felt if an individual of complete political polarity from them held the executive branch. Would the separation of powers still be respected and maintained?
Executive and legislative officials need to make changes regarding who declares an emergency, the branch responsible for terminating the emergency, how long it can last, and the authority granted to the Governor. Future emergencies will happen and it is imperative the ability to respond to disasters can go unhindered by red tape and roll out with expedited cooperation. However, no imagined future emergency should be used as an excuse to allow the continuance of statutes with the potential of long-term damage to the separation of powers.
Policymaking should never be done by one person behind closed doors, even during an emergency. The number of days an emergency declaration remains in effect is less important than the requirement that the policies imposed be subject to legislative review and consent. Lawmakers must ensure that emergency powers statutes have this proper balance of power before the next emergency is declared.