Lawmakers Move to Strip Governors’ Emergency Powers

This story was originally posted by Stateline, an initiative of the Pew Charitable Trusts.

When Kentucky lawmakers returned to Frankfort this month, they immediately moved to reduce Democratic Gov. Andy Beshear’s power to respond to disasters and infectious disease outbreaks. 

The Republicans who control the state’s legislature want emergency orders to end after 30 days, unless the General Assembly votes to extend them, and to limit the governor’s ability to close businesses and schools this year. They argue Beshear has been trampling on individual rights in his efforts to slow the spread of the coronavirus.

“I believe the governor has abused his executive powers and I believe a bill like this will ensure that this doesn’t happen again,” Republican state Sen. Matt Castlen told The Owensboro Times after pre-filing legislation to end emergency orders after 30 days. Castlen’s office did not respond to requests for comment by publication time.

Kentucky isn’t alone. For this year’s sessions, in at least half the states, Republicans and some Democrats have proposed limiting their governor’s emergency powers in some way, according to the National Conference of State Legislatures.

Some lawmakers may have lifted language from a model bill on the topic written by the American Legislative Exchange Council, an Arlington, Virginia-based group of state legislators that supports limited government.

Supporters say existing laws that give governors sweeping emergency powers are unsuited for a multiyear crisis such as the COVID-19 pandemic. Opponents of the proposed legislation, including many governors, say efforts to limit executive authority will make it harder for state leaders to act quickly in a crisis. 

This week Beshear vetoed three bills that would limit his emergency authority, arguing that they were impractical, dangerous and unconstitutional.

“I am vetoing Senate Bill 1,” he wrote of Castlen’s bill, “because it unconstitutionally interferes with the governor’s power and responsibility to confront emergencies. It would severely limit Kentucky’s ability to respond to emergencies like this pandemic, putting lives at risk.” 

Kentucky lawmakers and legal experts expect the legislature to override Beshear’s vetoes, and for Beshear to contest the new laws in court. 

Legislatures and governors have been fighting for months over the best response to the pandemic and who gets to make decisions during an extended emergency. Republican lawmakers have sued Republican and Democratic governors and tried to impeach some of them over their public health orders.

But many lawmakers haven’t had an opportunity, until the past few weeks, to force changes. Most state legislatures convene only for a few months in the winter and spring, or as in states such as Nevada and Texas, for a few months every other year. 

In Idaho, lawmakers spent the summer out of session discussing ways to reduce Republican Gov. Brad Little’s emergency powers. Now they’re back in session, and debating a flurry of bills.

Little declared a state of emergency in March and has renewed it 10 times since then. “I don’t think anyone envisioned that that could just go on in perpetuity, but that’s what’s been going on,” said Rep. Jason Monks, the Republican assistant majority leader.

A committee bill put forward by Monks would limit the length of an emergency declaration—meaning the governor’s formal declaration of a state of emergency—to 30 days, unless the legislature approves an extension. It also would require emergency orders to be essential for protecting life and property and bar them from restricting Idahoans’ ability to go to work. 

Lawmakers want to protect individual rights and make sure public health decisions are consistent, Monks said. For instance, he said, why are people allowed to cram into a Wal-Mart, but not attend a high school basketball game?

“Our government was set up with checks and balances,” he said, “and for some reason, we think that during an emergency, checks and balances need to be sent out the window.”

Little’s office did not respond to requests for comment by publication time.

Some Democrats also back limits on governors’ emergency powers. Washington state Rep. Steve Kirby is co-sponsoring two bills: one that would restrict the governor’s emergency orders to 30 days, unless the legislature votes to extend them, and another that would similarly restrict the state health department’s emergency orders.

Kirby said he signed on because Democratic Gov. Jay Inslee has made decisions without much consultation with lawmakers, such as shutting down businesses—which has resulted in layoffs and economic strain.

“I’ve been getting emails, every day, for months, from people who are downright desperate,” Kirby said, “and it just frustrates me to no end that I haven’t been able to do anything about it.”

Kirby said he’s not committed to voting for either bill and doubts they’ll even make it to a vote. But, he said, he hopes his co-sponsorship will encourage fellow Democrats to air their concerns about emergency orders.

Inslee spokesperson Mike Faulk didn’t respond to Stateline’s request for comment by publication time. But he told The Seattle Times the governor’s actions have saved lives.

“During the pandemic, we have seen in many states what happens when decisive action is not taken: Large increases in infections, hospitalizations and deaths,” Faulk wrote. “The focus on proclamations is misplaced, in that the real limitation in our lives comes from the destructive nature of the pandemic itself.”

Bills that would automatically end emergency authority after a certain period worry Lindsay Wiley, director of the Health Law and Policy Program at American University’s Washington College of Law. 

“The default if no one acts should not be that the entire government response evaporates,” she said. 

Wiley also noted that legislatures often are out of session and have less access to expert, in-house scientific advisers than governors. That makes lawmakers less able to quickly address a crisis, she said.

“An emergency, even a long-term emergency like a pandemic, requires not just swift action at the outset but also nimble tweaks in response to changing conditions,” she said. 

If the legislature has more say over an emergency response, political divisions between governors and lawmakers could make it hard for both sides to agree on a course of action, said Peter Jacobson, co-director of the Mid-States Region Office at the Network for Public Health Law, a nonpartisan Edina, Minnesota-based group that advises public health officials.

“The political polarization is at the heart of the problem,” he said. 

Lawmakers don’t have to strip gubernatorial power to have more oversight, said Kentucky state Sen. Morgan McGarvey, a Democrat and minority floor leader. He noted that the state constitution limits legislative sessions to 60 days in even-numbered years and 30 days in odd-numbered years. 

“We’re changing what the executive can and can’t do when the legislature isn’t in session, without changing how the legislature operates,” he said. 

Republican Speaker David Osbourne has proposed allowing lawmakers to add 10 days to a session. “I think that’s a conversation that’s really worth having in terms of the modern-day needs of Kentucky,” McGarvey said. 

McGarvey also said the debate in Kentucky is too focused on the current pandemic and not on natural disasters such as floods and droughts, which are much more common. “Do we really need the legislature to come back into session to confirm the fact that it hasn’t rained?” he said.

Public health law experts who’ve been advising governors say they support subtle tweaks to clarify the powers of the governor, legislature and public health officials during a pandemic. 

Wiley of American University said she’d like governors and health officials to share more information when they extend emergency orders, so the general public knows the scientific basis for policy choices.

Polly Price, a law professor and global health professor at Emory University, said statutes could spell out when the governor should seek approval from the legislature or when public health officials can take over the pandemic response effort.

But partisan tensions and backlash over COVID-19 public health orders may stop such ideas from gaining traction, at least right now, Price said. “Legislating in the midst of an emergency can be a very bad idea ... you’re not looking long-term,” she said.