In the spring of 2020, the Covid-19 pandemic tested governmental executive authority amid a cataclysmic public-health crisis. During those early weeks, when a dangerous virus became a stark reality—instead of an abstract concern relegated to history books—Americans readily accepted state-mandated lockdowns and restrictions to ensure hospitals weren’t overwhelmed with Covid-19 patients. As these initial restrictions became more expansive and more pervasive, the members of the State Policy Network (SPN), a non-profit network of state-level policy think tanks across the U.S., took up the cause of liberty and sound policy.
Theirs was a welcome entrance into the fray: Americans quickly learned how executive authority—usually wielded by governors’ emergency powers—could paralyze economic and social activity to protect public health. During pandemic-era life, the all-pervading U.S. presidency—especially in a major election year—at times seemed secondary to governorships. After all, in states like Pennsylvania, a governor could indefinitely issue emergency orders that dictated how people could live. As analyst Aaron Renn noted, “as the pandemic went on, these leaders continued to rely almost exclusively on emergency powers to govern.” He concluded: “A year and a half into the pandemic, we have in essence entered a system of rule by decree in America.”
Governors’ early restrictions were doubtless enforced to protect lives and mitigate the risk of a health-care system collapse. But soon thereafter, gubernatorial emergency orders too often became arbitrary and excessive, leading to profound consequences for Americans’ livelihoods. At times, governors’ powers were even based on archaic state laws. In Idaho, for example, a state representative observed how a “previous legislature back in the ’60s, fearing a nuclear holocaust, granted tremendous powers to the governor” but this “was the first time I think that those laws were really stress-tested.”
In many instances, governors’ pandemic response engendered an unforeseen governance dilemma. As the Maine Policy Institute’s Nick Murray wrote in National Review, the majority of states “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,” he added, “the checks and balances and separation of powers that normally exist in American government seem to disappear in some states under an emergency declaration.”
Clearly, state executives’ powerful unilateral authority—raising questions about separation of powers, government overreach, and even civil liberties—necessitated a public-policy response. “I start with this premise: If you would have asked any of us in January or February of 2020 if we could ever have foreseen the amount of unprecedented executive authority used over the coming 12 to 15 months, many of us would have scoffed at that idea,” an Ohio state senator told the Washington Post. “No way that would happen in a country like the United States, in a state like Ohio. Yet it did.” As Josh Crawford, executive director of Kentucky’s Pegasus Institute noted, after the first 30 to 60 days of prolonged emergency declarations, lawmakers across the U.S. confronted “questions of traditional governance: how to balance this public-health concern with economic ramifications.”
Since last year, according to a Kaiser Health review, legislators in all 50 states have proposed laws to curb executive powers. More than 26 states have passed laws that curtail expansive executive authority during an emergency, such as the Covid-19 crisis. These successful legislative outcomes follow a valuable lesson from the pandemic. “Governors should have broad emergency authority to respond to unforeseen situations like the pandemic,” wrote Renn. “But this should be strictly time limited.” As a Pegasus Institute report argued: “Vesting too much power in a single branch of government or individual throws off the delicate balance between the three branches of government, and this balance between the separate powers ‘is not merely a matter of convenience or of governmental mechanism. Its object is basic and vital.’”
SPN-affiliated think tanks played a crucial role in successful nationwide efforts to pass emergency powers reforms. “While it’s important that government officials have the ability to make quick decisions in an emergency,” SPN noted, “once the initial emergency passes, lawmakers need to seek input from the American people.” Earlier this year, SPN launched a program to assist network think tanks to advance better public-policy for emergency management. As the organization reported, network think tanks worked “to reform their states’ emergency powers, restore balance of power, and give Americans a say in policies that deeply affect their lives.”
Initiatives among state-level think tanks led to wide-ranging—and even bipartisan—changes that improved the three government branches’ balance of power during an emergency. Though too many Americans—particularly working-class families and businessowners—suffered the social and economic ramifications of executive emergency powers, varied state-level reforms will allow governors to respond to future crises without repeating the mistakes of this past year.
A Question of Due Process in Kansas
Last March—following an emergency declaration—Democratic Gov. Laura Kelly issued a succession of executive orders, including lockdowns that exempted controversially defined “essential” businesses. The order—enforced by the Kansas Division of Emergency Management—led to perplexing outcomes. “For example, the department decided that golf courses were essential and allowed them to remain open if they followed such reasonable safeguards as 6 feet of social distancing,” wrote Elizabeth Patton in the Topeka Capital-Journal. “But other businesses that could also operate outdoors with reasonable safeguards, such as photographers and personal trainers, were closed by the state.” Last spring, Republican Senate President Susan Wagle noted how Kelly’s “emergency declarations apply to all of Kansas and there are counties that still have had no cases.”
In July 2020, the Kansas Policy Institute (KPI) conducted a pandemic survey of state businesses. “Even though 90% of Kansas businesses polled were considered ‘essential,’ 70% of those businesses felt stay-at-home restrictions in Kansas or their city should have been lifted immediately instead of a phasing-out,” KPI found. “Nearly three-quarters of Kansas businesses polled thought closure orders were too restrictive.”
By then, KPI had launched a two-pronged campaign—focused on due process—to “restore balance of power to state government and protect the individual rights of Kansan residents,” said Sam MacRoberts, litigation director of Kansas Justice Institute (KJI), KPI’s litigation arm. First, the owner of a popular bar in Lawrence—home to the University of Kansas—partnered with KJI to sue Douglas County to protect her due-process rights. The lawsuit followed a Douglas County health officer’s arbitrary order “that forced businesses to close earlier than state law permitted regardless of a bar’s COVID-19 mitigation protocols.” KJI argued that the order resulted in owners “being denied their civil liberties.”
In addition, responding to Kelly’s executive powers, KPI pursued legislative efforts to reform Kansas’s Emergency Management Act. This led to the passage of Senate Bill 40 (SB 40), signed into law by Kelly, who called the bill a “bipartisan compromise.” SB 40 empowers legislative oversight of gubernatorial emergency orders; bars local health officers from issuing unilateral orders; permits individual Kansans to challenge local health orders by civil action; and strengthens county commissions. With the law’s passage, the Lawrence restaurant owner dismissed her lawsuit in Douglas County, which had lifted its order. As MacRoberts put it, the “first-in-the-nation legislation…ensured that all Kansans had due process rights when subject to shutdowns, mandates, and the like during an emergency.”
But this summer, the policy fight continued in Kansas, where a state district court ruled as unconstitutional portions of SB 40—including the law’s timeframe for hearing civil lawsuits. In late August, though, the Kansas Supreme Court halted the lower court’s decision, thereby restoring the emergency powers limits. The law is currently before the state Supreme Court. In an August amicus brief to the court, KJI argued that SB 40 “should be celebrated, not criticized.” As the brief noted, when the government wields public-health powers, “the people affected should be afforded a prompt and meaningful hearing—a simple, yet effective remedy against potential government overreach.” The court’s decision on this issue of due process rights is pending.
An Issue of Policy-Making Authority in Kentucky
During the Covid-19 crisis, the Republican-majority General Assembly considered the economic consequences of Democratic Gov. Andy Beshear’s strident and unilateral emergency orders. Indeed, the economic repercussions were dramatic: by January 2021, 1.3 million Kentuckians—62% of the state’s workforce—had filed for unemployment. As the Pegasus Institute noted, “Among the most important costs, though difficult to quantify, are the loss of schooling and socialization for hundreds of thousands of Kentucky children, delayed diagnosis and treatment of serious diseases, as well as depression and suicide for those isolated and fearful.”
In the spring of 2020, Beshear didn’t even appear to follow his own Covid-19 rules. That May, following a response to its open records request, the Bluegrass Institute found that several employees worked at the Governor’s Mansion despite Beshear’s emergency orders. “If, as the governor claims, he’s ordering out several times weekly to help struggling restaurants and with no scheduled events at the mansion, what possible justification exists for forcing 11 employees to violate the quarantine directives he dramatically claims could be a matter of life and death?” asked Jim Waters, Bluegrass Institute president and CEO. “Shouldn’t those workers be staying home, protecting themselves and filing for unemployment just like tens of thousands of their fellow Kentuckians?”
There was also the legal question of Beshear’s policy-making powers during an emergency. As a Pegasus Institute report argued, “While there can be legitimate disagreements between the branches as to the efficacy of a particular public health or economic policy…the power to set the policy agenda lies with the General Assembly. This is because police power belongs to the legislature, not the Governor.” As a separate Pegasus report observed, “Kentucky is one of eight states…that provide no explicit authority to their chief executive to change statutes or regulations during a declared emergency.”
As Crawford recounted, the Pegasus Institute explored how other states handled emergency powers, issued a policy brief, testified before the legislature, and shared recommendations that eventually became Senate Bill 1 (SB 1), which passed over Beshear’s veto in February 2021. The law limits a governor’s executive emergency orders to 30 days unless extended by the legislature. In addition, the legislature approved a measure—again overriding Beshear’s veto—advising businesses and schools to follow the “least restrictive” Covid-19 guidelines from the Centers for Disease Control and Prevention or the governor.
In response, the governor filed a lawsuit challenging the legislative measures, prompting a landmark separation-of-powers case. A lower state court initially issued an injunction that blocked the legislature’s emergency powers laws. But in August 2021, the state Supreme Court dissolved the injunction and ruled in favor of the legislature. "In sum, considering that the challenged legislation was lawfully passed, the governor’s complaint does not present a substantial legal question that would necessitate staying the effectiveness of the legislation," wrote one court justice.
In September, in a special legislative session, lawmakers passed a bipartisan resolution that extended a number of Beshear’s executive orders—including health-care waivers—through January 2022. In addition, under its reformed policymaking powers, lawmakers blocked statewide mask mandates for all Kentuckians and public schools. As Waters pointed out, “When it comes to whether kids should be forced to wear masks in school, the special session did make it clear that those decisions will be made at the local level instead of by the unelected, ideological state education board members.”
Overall, the Kentucky legislature’s emergency powers reforms addressed important policy-making concerns during a crisis like Covid-19. Though Kentucky has divided government, the Pegasus Institute’s Josh Crawford concluded that “this isn’t so much about parties as it is the separation of powers.”
Reforms Transcend Party Affiliation in Ohio and Utah
In Ohio and Utah, Republican lawmakers embraced reforms that checked the emergency powers held by governors of their own party.
First, in Ohio, lawmakers in the General Assembly—where Republicans hold supermajorities in both chambers—passed legislation in response to GOP Gov. Mike DeWine’s aggressive Covid-19 emergency orders. Last year, the DeWine administration issued public-health orders—empowered by archaic laws—that included weeks-long business lockdowns and stay-at-home orders. As the Cleveland Plain Dealer reported, “While the state department of health hasn’t issued such sweeping orders in recent memory, the state’s power to rearrange everyday life has been established in Ohio law even before the creation of the Ohio Department of Health itself 103 years ago.”
In November 2020, Robert Alt, president and CEO of the Buckeye Institute, issued a statement in opposition to a second Covid-19 shutdown of Ohio businesses. As Alt argued, “Ohio would be better served to focus its limited resources on truly bad actors rather than crushing whole sectors of the economy.” As the Buckeye Institute pointed out, “More than 246,000 who work at hotels, restaurants, and bars were out of work during the last shutdown, and there are still more than 100,000 fewer jobs in those industries compared to this time the previous year [2019].”
The second shutdown didn’t happen, though the scope of executive emergency powers raised concerns among lawmakers. The Buckeye Institute shared behind-the-scenes thoughts about crafting legislation to address emergency powers. “In general, here in Ohio, this was a very grassroots effort and lawmakers were very out in front of this [issue],” said Greg Lawson, Buckeye’s research fellow.
The result was Senate Bill 22 (SB 22), legislation passed in March 2021 over DeWine’s veto. The bill empowers the legislature to cancel any gubernatorial public-health order that lasts longer than 30 days. The governor is also required to renew health orders every 60 days. Emergency powers limits, moreover, apply to the lieutenant governor, attorney general, secretary of state, treasurer, and state auditor. In addition, the law created a legislative oversight panel. As one legal report put it, SB 22 makes “virtually all emergency actions subject to legislative review, rescission, or invalidation.”
In late August, DeWine, who is up for re-election next year, addressed questions about issuing temporary emergency orders. “We’re clearly well past the time when the state can mandate to parents, to local school districts, to parochial or private schools, what actions to take,” said DeWine. “These decisions today rest with each parent, rest with the parents and rest with the school officials.”
Meanwhile, in August 2020, Utah Republican Gov. Gary Herbert, who had not sought re-election, issued a new Covid-19 state of emergency after the GOP-majority legislature let the previous order expire. As Libertas Institute president Connor Boyack put it, “Herbert circumvented the Legislature on tenuous legal grounds by simply issuing a brand new emergency declaration that effectively duplicated the previous one.” Herbert continued re-issuing emergency orders until he left office in January 2021.
This renewal pattern raised questions among GOP lawmakers about gubernatorial emergency powers. “We’re trying to respond as best we can to a health crisis and yet on the same account, everything that creates in our economy, our schools, the trickle down effect is problematic,” said state Sen. Jake Anderegg. “And I think that as opposed to having all that power reside with some bureaucrats in a local or state health department, for a long sustained, longer than 30 days, we need to have some checks and balances in place to make sure things don’t go completely off the rails.” Boyack noted that the “legislature’s real concern…was that there were laws on the books allowing for emergency declarations and expansion of executive power that had never been really utilized in at least a very long time.”
In response to this precedent set by Herbert, the legislature worked to revise the scope of a governor’s executive authority during a crisis such as Covid-19. Earlier this year, lawmakers passed Senate Bill 195 (SB 195), wide-ranging legislation that set restrictions on public-health orders and limitations on gubernatorial emergency powers. The bill, for example, “allows the Legislature to terminate a public health order from the state health department and allows a county council to do the same for a local health department.” In March, Republican Gov. Spencer Cox, who was previously lieutenant governor under Herbert, signed the bill into law. Derek Monson, vice president of policy at the Sutherland Institute, noted that the think tank had input on the legislation, “including the inclusion of protections for religious expression under an emergency order of the governor.”
Overall, SB 195 was viewed as a public-policy victory for those who supported curtailing burdensome public-health restrictions. “Prior to this, health officials on their own could dictate behavior to people, such as masks and lockdowns,” said Boyack. “These are unelected officials who should not wield that significant executive power.”
Earlier this fall, though, the debate over Covid-19 mandates continued in Utah. This was especially the case in Salt Lake City, where local elected officials and parents debated mask mandates in the city’s public schools. Monson views the mask mandate issue as a civics lesson. “Whatever the next mask mandate dispute or controversy may be, it should remind us of the importance of understanding how our government works,” wrote Monson. “The more we lose that understanding, the more that mask mandates and similar issues will feel like the least of our worries.”
Voters Curb Gubernatorial Emergency Powers in Pennsylvania
In early March 2020, Democratic Gov. Tom Wolf signed a Covid-19 disaster declaration. That spring, Pennsylvanians were living in lockdown. As weeks passed, though, Pennsylvanians witnessed the increasing perplexities of Wolf’s vast and even punitive Covid-19 restrictions. Moreover, his emergency orders—ranging from defined “life-sustaining” businesses to arbitrary capacity restrictions—economically devastated Pennsylvania communities. According to federal data in late 2020, Pennsylvania’s Covid-19 lockdown had at one point shuttered 30% of state businesses—the second most in the U.S. Overall, Wolf’s Covid-19 policies, including his mismanagement of nursing homes, elicited bipartisan criticism.
Even today, new reports reveal the extent of Wolf’s flawed Covid-19 response—all backed by a succession of disaster declarations. For example, in September, Republican state auditor general Timothy DeFoor recently released an audit of the administration’s Covid-19 business waiver program, which permitted controversially defined “life-sustaining” businesses to still operate in the spring of 2020. As the audit found, the Wolf administration’s program was implemented “on the fly.” “This audit revealed a flawed process that provided inconsistent answers to business owners and caused confusion,” noted DeFoor. Last fall, DeFoor’s Democratic predecessor, Eugene DePasquale, compared Wolf’s secretive waiver process to a “Keystone Kops routine.”
Beginning in the summer of 2020, lawmakers of both political parties in the GOP-majority state General Assembly took action against Wolf’s emergency powers, which profoundly affected livelihoods. Though lawmakers had voted to end Wolf’s emergency declaration, the Democratic-majority state Supreme Court sided with the governor that the legislature couldn’t end the declaration without his agreement, or a veto-proof majority. By early 2021, the General Assembly had passed proposed constitutional amendments that would check a governor’s ability to renew emergency powers (enforced in 90-day intervals). The amendments—in the form of two ballot questions—went to Pennsylvania voters in the May primary.
Throughout the spring of 2021, the Commonwealth Foundation embarked on an education campaign to inform Pennsylvanians about the emergency powers issue, the costs of Wolf’s Covid-19 policies, and why voters should vote “yes” on the ballot questions. Commentary pieces by Commonwealth Foundation staff were published in wide-ranging national and state-level publications, including the Wall Street Journal and USA Today. In the Allentown Morning Call, Commonwealth Foundation vice president Nathan Benefield wrote that, “Wolf…exercised unchecked authority to create orders that burdened small businesses, schools, families and health care providers.” He added: “Unfortunately, he wielded these emergency powers with limited transparency or accountability.” Benefield concluded that the May vote was “crucial to restore local control, support families and secure our communities as they rebuild.”
Indeed, in the state primary, Pennsylvania voters became the first in the U.S. to curtail gubernatorial emergency powers. Now, the General Assembly can terminate a governor’s emergency declaration with a simple majority vote. A governor’s declaration, moreover, is limited to 21 days unless a majority of lawmakers approve an extension. Following the primary, Commonwealth Foundation CEO Charles Mitchell stated that, “It is prudent to allow executives to act quickly and decisively in case of an emergency. However, the principles of representative self-government dictate that such decisive action cannot be maintained in perpetuity, without any valid check on executive power.”
Today, the debate over Covid-19 mandates continues in Pennsylvania. In late August, in a move that departed from his earlier position, Wolf issued a statewide mask mandate for public and private schools. Instead of an emergency disaster declaration, the order was issued by the administration’s acting health secretary, who used powers granted by laws dating as far back as 1929. As Republican legislative leaders view it, masking mandates in schools should be decided at the local level. In November, the state Commonwealth Court ruled that the health secretary lacked authority to issue the mandate, which will be voided in early December. The Health Department appealed to the state Supreme Court, which is scheduled to hear the case by the end of the year.
Meanwhile, in November, the House State Government Committee approved proposed bills that would further limit gubernatorial powers. The legislation would amend the state constitution to limit a governor's executive orders or proclamations to 21 days. The prime sponsor, Republican House Speaker Bryan Cutler, said, “Our constitution is very clear that no single branch of our government, nor any unelected bureaucrat, should ever have the unilateral and unchecked authority to issue open-ended orders or regulations.” He added: “The people of Pennsylvania deserve the opportunity to decide how they are ruled now, and at all times.”
Emergency Powers Fight Goes to Court in Wisconsin
In Wisconsin, Democratic Gov. Tony Evers had issued multiple Covid-19 emergency orders that included closing schools indefinitely and shuttering “non-essential” businesses. Indeed, state officials had issued more than 50 emergency orders, which were based on unchanged sixties-era statutes.
Over time, the succession of orders raised serious questions about separation of powers and civil liberties. “An initial order, subject to statutory and constitutional limitations, was understandable,” wrote the Wisconsin Institute for Law & Liberty’s Rick Esenberg and Daniel Lennington in the Capital Times. “But over the course of the pandemic, Evers and his agencies issued dozens more emergency orders, ruling by executive order and circumventing the Legislature.”
In February, for example, Evers issued a statewide mask order about an hour after the GOP-controlled legislature voted to strike down an identical mandate. To Republican lawmakers, the issue wasn’t about mask mandates. “I know you want to make it about masks. It’s not,” said GOP Majority Leader Jim Steineke. “It’s about the rule of law.”
The Wisconsin Institute for Law & Liberty (WILL) became involved in litigation that challenged Evers’ legal authority to impose multiple Covid-19 emergency orders. In August 2020, for example, WILL filed a lawsuit (Lindoo v. Evers) in a Polk County circuit court on behalf of three Wisconsin taxpayers. As WILL argued, “Wisconsin law makes clear that without express approval from the state legislature, the governor lacks the legal authority to extend an emergency declaration beyond 60 days.”
In a separate case, Fabick v. Evers, the Wisconsin Supreme Court reviewed Evers’s constitutional authority to issue multiple emergency declarations. WILL had filed an amicus and Esenberg, WILL president and general counsel, participated in court oral arguments in November 2020. In late March 2021, the court ruled that the governor indeed overstepped his executive powers when issuing multiple public-health emergency orders. The ruling struck down Evers’s statewide mask mandate, though local governments could impose their own Covid-19 restrictions. “The question in this case is not whether the Governor acted wisely; it is whether he acted lawfully,” wrote Justice Brian Hagedorn for the conservative majority. “We conclude he did not.”
While the court confirmed that Evers overstepped his authority, Esenberg noted that it’s unlikely that lawmakers can pass reforms to address a governor’s emergency powers. After all, Wisconsin currently has divided government. Esenberg emphasized, though, “that our statutes have to be reformed.” Earlier this year, WILL released a policy report that offered recommendations for such reforms, including limiting gubernatorial emergency declarations to 30 days. As WILL concluded: “The chief solution is to insert more legislative oversight and participation in the process of issuing orders that many times restrict individual liberties.”
Pandemic Offers Important Lesson on Separation of Powers
Across the U.S., unfettered gubernatorial emergency powers—in the absence of legislative checks on governors’ pandemic response—led to prolonged restrictions, spanning from prohibitions on small business activities and social interactions to school closures. The costs proved devastating for U.S. cities and towns, where a services-based economy—often dependent on tips and wages—long ago replaced the industries that gave rise to many communities’ existence. Excessive pandemic restrictions, moreover, led to dire societal outcomes, including a worsening opioid addiction crisis. Even today, last year’s unchecked gubernatorial powers have played a long-term role in labor-force and supply-chain disruptions. As a Kansas Policy Institute report noted, the “economy is an interconnected web and not isolated strings of supply chains.” And so, for example, last year it did “no good for ‘essential’ businesses to get back to work if [there were] no raw materials or lab]or for them to use.”
This economic crisis raised important questions about government overreach. “Supreme Court Justice Louis Brandeis wrote that the states are laboratories of democracy,” noted George F. Will in the Washington Post. “During the pandemic, many have become laboratories of authoritarianism, the pleasures of which…some governors seem reluctant to relinquish.”
State Policy Network think tanks effectively responded to this issue with varied reform efforts, from a successful ballot question in Pennsylvania to a favorable court ruling in Wisconsin. These think tanks responded to prolonged gubernatorial policies that imperiled Americans’ livelihoods, delayed children’s education, economically hurt communities, and only intensified the nation’s political divide. “More than a century and a half ago, the U.S. Supreme Court ruled that even in the midst of civil war, governments had no business overriding constitutional guarantees in the name of public safety,” wrote Allen Guelzo in the Wall Street Journal. “The day of the governors has come, but it may not last long, as Americans reassert the limits of the Constitution.” Indeed, this past year, public-policy think tanks played a crucial role in restoring the separation of powers in the pandemic era.
Charles McElwee is the editor of RealClear’s public affairs page on Pennsylvania. He is a regular contributor to City Journal. Follow him on Twitter @CFMcElwee.