The Covid State is Crumbling. State Legislatures Must Continue to Curb Emergency Executive Power
Connecticut and Iowa ended their states of emergency declared in response to the COVID-19 pandemic on February 15th and 16th, respectively. According to Ballotpedia, 26 states still have emergency declarations or public health directives in place, though these declarations confer varying levels of emergency power to each state’s chief executive.
It's likely the last of these dominoes will fall before the end of the calendar year. Just in recent weeks, it has become more apparent that the COVID state is crumbling, both domestically and abroad.
Although most states will have ended their emergencies within the next week, many continue to grapple with finding the proper balance of power between the legislative and executive branches during an emergency.
Arizona lawmakers are considering proposals to prevent officials at the state and local levels from selectively closing businesses and requiring legislative approval for emergency declarations to persist after 120 days.
In Washington state – where a state of emergency persists nearly two years after the COVID-19 pandemic began – lawmakers are debating a pair of bills that would require stronger legislative oversight of Gov. Jay Inslee’s emergency powers.
House Bill 1772, sponsored by a Republican, would limit the duration of a state of emergency to 60 days unless approved by the legislature to continue, and allow lawmakers to rescind individual emergency orders issued by the governor. According to the Center Square, more than 5,400 people signed up to testify on the bill, the “vast majority” of those supporting the proposed reforms.
Another measure, Senate Bill 5909, sponsored by a Democrat, would allow legislative leaders to cancel an emergency declared by the governor after 90 days.
Traditionally, states of emergencies are declared for natural disasters and catastrophic weather events like wildfires, tornadoes, or here in New England, ice storms and Nor’easters. Never before have most people seen an emergency declared – and then persist in perpetuity – period, let alone due to a new pathogen.
Equally as troubling is the ways in which governors wielded their vast emergency powers during the pandemic, often with no involvement or oversight from the people’s branch, the legislature.
In Maine, Gov. Janet Mills – like many governors – issued nonsensical rules that had no backing in science. At one point, Mainers could only golf in their home county unless they were a member of a golf club in a different county. There is no evidence that golfing contributes in any measurable or significant way to the spread of COVID-19, but Mainers’ freedom to do so was nonetheless curtailed by their governor.
While this example only scratches the surface of ridiculous restrictions forced upon citizens by governors during the pandemic, it underscores the true absurdity of what’s transpired in virtually every state over the last two years: unscientific micromanagement of nearly every aspect of society and sector of the economy, all in the name of “doing something” to stop the virus; facts, science, logic and livelihoods be damned.
Fortunately, American citizens – and as a result, their elected officials – have had enough.
In 2021, at least 46 states introduced reforms to their emergency power laws to require greater oversight of their governor’s actions. Sixteen states enacted reforms, and 11 of them were substantial enough to reflect changes to their ranking in the second edition of Maine Policy Institute’s “Scoring Emergency Executive Powers in All 50 States,” a scorecard that measures the balance of power between the legislative and executive branches during states of emergency in every state.
Eight of the 15 highest scoring states reformed their laws in 2021 while the bottom 20 scoring states made no changes at all.
Kentucky and Ohio, two states which previously did not provide any limitation on the duration of an emergency declaration, reformed their laws to limit the proclamations to 30 and 90 days, respectively. They also created processes where their legislatures must approve extensions to the emergency.
In Pennsylvania, voters passed a referendum that reduces the length of emergency declarations from 90 to 21 days and requires legislative approval to be extended. In other states, like New Hampshire and Ohio, legislatures can now rescind individual orders issued by the governor during an emergency.
Every state should pursue a balanced law that requires emergency declarations and orders to sunset unless ratified by the legislature. The orders issued under the emergency should be narrowly tailored to serve a compelling health and safety purpose, and legal challenges to them should be subject to expedited judicial review when the restriction concerns a constitutionally protected right.
These are timely and necessary reforms that adequately balance the power of the legislative and executive branches. Hopefully, the COVID-19 pandemic has revealed why the principles of representative government and the separation of powers cannot be deserted, even in emergency situations.
Nick Murray is a policy analyst at Maine Policy Institute, a free-market think tank headquartered in Portland, ME.
