by Steve Miller
While many government leaders sound the all clear message on COVID-19, dropping vaccine restrictions and mask mandates, some states and municipalities are clinging to the emergency powers that allowed them to govern people’s behavior in unprecedented ways.
Citing the need to direct emergency funding and oversee hospitals, they have held on to their emergency orders even as many restaurants, shopping centers, and sports arenas are once again packed and lingering pandemic concerns have faded into the background of a more normal life.
Emergency orders at the state level are usually issued in response to temporary threats, especially weather disasters, and are wrapped up in a few days or weeks. Soon after the new coronavirus exploded in March 2020, most governors issued broad executive orders. Under these powers, governors banned crowds, closed businesses, and imposed mask and vaccination mandates. They have also deferred to unelected public health officials in imposing restrictions.
Critical lawmakers are now challenging the power to take such sweeping actions – and keep the measures in place indefinitely – saying pandemic lockdowns exposed leaders’ unduly stringent authoritarian impulses.
Ruling by decree over an extended period during the pandemic “is part of a broader move to condense power to the executive branch,” said Nick Murray, policy analyst at the conservative Maine Policy Institute, who has studied emergency policies. “You see these things come into play during a crisis and then [remain in place] to give more executive power,” Murray said. “It’s a theme that has devolved into bureaucracy.”
In Nevada, the state of emergency has been declared in perpetuity, even as state lawmakers have unsuccessfully tried to pass measures limiting the authority of Democratic Gov. Steve Sisolak.
In Kansas, the emergency authority of Gov. Laura Kelly, also a Democrat, extends to January 2023. She has clung to the order even as the state’s director of public health – a now-estranged former political ally – questioned the need for a continued state of emergency.
And in North Carolina, Democratic Gov. Roy Cooper in November vetoed legislation that would require wider input from elected leaders if he wished to continue his ability to issue restrictions under a declared emergency. The Republican-controlled legislature got around the veto by attaching provisions to the state’s budget bill, which prevent Cooper from again declaring a state emergency and exercising singular authority for longer than 30 days. Yet Cooper last week extended the emergency due to expire in April even as cases waned.
Lawmakers in most states have either passed laws or introduced legislation aimed at curtailing governors’ emergency authority. These laws include prohibiting mask mandates and business closures and set time limits on emergency orders.
Twelve states, seven of them with a Democratic governor and legislature, have emergency orders still in place. The remaining states have either ended their emergency or have announced a date to terminate it.
Supporters of an extended emergency, which include many in the health care field, argue that the effort to limit the ability of governors and health care officials to respond to future crises is dangerous.
“You can’t have this sweeping legislation based on a single event,” said Lori Tremmel Freeman, CEO of the National Association of County and City Health Officials, which represents workers in 2,800 municipal public health offices and which issued a report last year criticizing legislative moves to rein in the authority of public health officials and governors. “There is a balance that can be found, but some of these have gone to the opposite end of the spectrum that allows them to prohibit [health officials] from doing anything.”
Jason Mercier, director of the right-leaning Center for Government Reform in Washington State, largely agrees with Freeman. “We’re not as worried about emergency orders; it’s the restrictions that need to be subject to legislative oversight,” he said.
States have varying laws regarding the ending of emergency power; in some states, only the governor can end an emergency. In others, legislators can. Mercier noted that in his state, where the party of Democratic Gov. Jay Inslee also controls the statehouse, a state of emergency can be extended indefinitely and has been, with Inslee insisting he can rule without agreement from any other officials.
“What we have here is one person behind closed doors enacting policy,” Mercier said.
The struggle over emergency powers is also happening within states. Some cities and counties also declared emergencies in early 2020, using them to enact local restrictions, often in political clashes with state leadership they did not agree with.
In Texas, leaders in mostly urban cities and counties have ignored Republican Gov. Greg Abbott’s COVID-19 rules, insisting they have the right under a local state of emergency to impose masking and other measures. Abbott contends he has full authority to issue emergency orders, which void local mandates declared under the same state emergency statute. Legal battles have moved through the court system since summer 2021.
Some municipalities, like the city of Phoenix, have refused to set a date to lift the declaration. City Council spokeswoman Stephanie Barnes did not respond to an email seeking comment.
“Most existing emergency management statutes, with some exceptions, are blunt instruments,” said Luke Wake, an attorney with the California-based Pacific Legal Foundation. The conservative group represented several businesses in legal battles to remain open.
“The orders are either on or off, but as long as they remain in place the governor has all of the power,” Wake said. “This experience has taught us that we need to rethink how broad the powers we give these people are. Most people had never looked at this, and [COVID-19] gave us all a good reason to do so.”
California Gov. Gavin Newsom locked down people and closed businesses under the state’s emergency powers act, which remains in place despite persistent calls by mostly Republican forces for it to be removed.
Dozens of lawsuits challenging emergency authority have been filed against governors of both political stripes. The plaintiffs run from business owners and open meetings advocates to regular citizens who insist emergency powers used in some places are unconstitutional. Many of these cases have been settled as restrictions ended or agreements were struck.
Wake and the Pacific Legal Foundation are handling the case of Ghost Golf, an indoor recreation center in Fresno that challenged Newsom’s order to close. Several other businesses also sued the state to remain open, but dropped their cases when Newsom allowed businesses to open in June 2021. The Ghost Golf case continues, however.
“The governor lifted the restrictions, but he could reimpose those at any point as long as the emergency exists,” Wake said. “With every variant, people have to worry that the reason the governor hasn’t allowed it to lapse is to make it possible for him to take the same action again.”
In Michigan, it took a 4-3 state Supreme Court ruling to remove the vast emergency powers invoked by Gov. Gretchen Whitmer, which she used to issue sweeping and detailed restrictions in the first year of the pandemic. At one point, her orders prohibited residents from purchasing specific “nonessential” items, including house paint, while the state’s recreational marijuana dispensaries were allowed to remain open.
Whitmer sidestepped the court ruling by handing over those same powers to the Michigan Department of Health and Human Services, where a political appointee and public health official enforced her orders. A group calling itself Unlock Michigan has battled Whitmer and her administration, filing petitions challenging the authority of her and her health department.
“To upend society and destroy people’s business, you should get some elected officials involved,” Fred Wszolek, a spokesman for the group, said. “We want whoever takes control in an emergency to have checks and balances.”
The authoritarian impulses of governors are not limited to Democrats. When legislatures in three GOP-controlled states passed bills curbing the emergency powers of chief executives, the Republican governors of Ohio, North Dakota, and Indiana vetoed the bills. Those vetoes were successfully overridden, however, and enacted into state law.
Proponents of strong emergency powers also claim that because legislatures in most states are not full time, a prompt response to a crisis requires that a single individual be able to designate a situation as a lethal health crisis.
Yet, four of the states with the most extensive restrictions during the pandemic all have full-time legislatures. All four (Michigan, California, New York, and Pennsylvania) are led by Democratic governors, although two of them – Michigan and Pennsylvania – have Republican-controlled legislatures.
Andy Baker-White, senior director for state health policy for the Association of State and Territorial Health Officials, noted in a recent legislative briefing to association members that maintaining legal authority to impose mask-wearing and other restrictions is “crucial” to preparing for outbreaks.
Baker-White said in an interview with RCI that some of the proposals to limit emergency authority “are like tying a hand behind your back before getting into the boxing ring.”
“These powers and authorities are part of the toolbox to prevent the spread of infectious disease,” he added. “These often need to be flexible and swift when dealing with these diseases. Limiting these powers can have an impact on the ability to respond, and without an adequate response, a disease can cause more harm.”
The flexibility to govern in an authoritarian fashion, though, is exactly what is being targeted by state lawmakers around the U.S.
“It’s so bonkers that any legislature did not put an expire time on these emergency orders,” said Wszolek of Unlock Michigan. “When you consider what these powers allow, we really need to think about that. This is a muscle that really got used.”
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