It’s probably not the first thing that comes to mind when you reflect on 2020, but who would blame you? Between the coronavirus, civil unrest, and a divisive presidential election, it’s hard to keep track of everything that’s happened in such a tumultuous year. However, another crisis took hold in 2020 that will have significant implications on Americans’ freedoms: extensive government overreach.
In response to the pandemic, governors across the country implemented emergency orders that shut down businesses and forced people to remain in their homes. Michigan banned travel between residences. Philadelphia authorities dragged a man off a bus for refusing to wear a mask, while Colorado police arrested a man for not socially distancing in a park with his six-year-old daughter.
What started as “two weeks to slow the spread” turned into months of continued lockdowns. These measures have crippled the economy and left many without a way to provide for themselves and their families.
While it’s important that government officials have the ability to make quick decisions in an emergency, once the initial emergency passes, lawmakers need to seek input from the American people. Many state executives, however, extended unilateral control over their state’s response to the pandemic, violating the important separation of powers provision that prevents one branch from wielding too much authority.
State Policy Network launched a new grant program to help state think tanks reform these broken emergency management protocols and restore checks and balances in their state. SPN’s Government Overreach Grants helped support state think tanks as they worked alongside leaders to advance policies that better prepare their state to respond to future crises. SPN awarded grants to 11 state think tanks across the country. Below are brief descriptions of their campaigns.
In Tennessee, if someone violates a local health department regulation, it’s a class C misdemeanor. Local governments have used this law to impose criminal penalties for failure to comply with mask mandates and other public health rules. This empowers unelected local bureaucrats to create crimes out of thin air, with no transparency and no accountability. The Beacon Center of Tennessee is using this grant to conduct the necessary research and provide legislators with an outline of the laws and regulations like these that should be revisited. Beacon will work with lawmakers to craft reforms that create proper limits, timeframes, and checks and balances against state and local executive power, while still preserving executive authority to act swiftly in emergency situations.
In March, Ohio lawmakers approved, and the governor signed, legislation instructing businesses to continue withholding municipal income taxes as usual even if their workers were working from home per stay-at-home orders. This unlawful taxation is a clear violation of due process rights under the Fifth and Fourteenth Amendments to the US Constitution. It also violates Article I, Section 1 of the Ohio Constitution. To push back against this blatant overreach by Ohio’s government, The Buckeye Institute, along with three of its individual employees, filed a lawsuit against the city of Columbus and the state of Ohio. Buckeye is calling for the court to declare unconstitutional the continued collection of municipal income tax from workers who do not live in the city’s jurisdiction and have been working from home, in some cases due to the state’s own stay-at-home order, throughout the pandemic.
Hawaii’s coronavirus lockdown trampled on the civil liberties of Hawaii residents and destroyed much of the state’s economy. In response to this lockdown, the Grassroot Institute of Hawaii is producing a policy brief with specific reforms to the state’s emergency management laws. These reforms recommend that any restrictive measures imposed on the public under the state’s emergency management laws are tailored with a clear connection to public health and safety; keep the government’s transparency laws in place; and include specific, enforceable time limits on the emergency proclamations. These reforms will better protect the civil liberties and economic livelihoods of Hawaii residents during future public health or natural disaster emergencies.
On March 10, 2020, the North Carolina Governor issued a state of emergency in response to the pandemic. That state of emergency has continued for months. What originated as a public health matter has devolved into economic devastation as North Carolinians have seen their investments ruined and jobs gone; and a constitutional crisis as residents have suffered severe limits on their right to assemble and worship. Because the state of emergency has no time limitation, the governor has consolidated all power in the executive branch and blatantly ignored constitutional requirements and input from the Legislature. The John Locke Foundation is using this grant to launch a campaign to amend the Emergency Management Act and restore balance of power in North Carolina. Reforming this Act will prevent an abuse of executive power in the future.
The Kansas Policy Institute (KPI) is conducting a statewide public opinion survey to determine what type of changes should be made to Kansas’ emergency powers. Some of the questions in the survey include: Should there be separate rules for pandemics versus fires and floods? Should the government be allowed to determine which businesses are “essential”? If so, how should those decisions be made? Should the governor alone be empowered to make emergency management decisions, or should there be legislative oversight and approval? KPI is sharing the results of the survey with legislators, candidates, local public officials, media, and the general public.
The Libertas Institute is working with Utah lawmakers to reform the state’s antiquated Emergency Management Act and curtail gubernatorial and mayoral authority during an emergency. Libertas is drafting specific proposals, backed by research, that will restrict executive authority to shut down businesses and deem some “essential” versus “nonessential.” Other proposals will recommend ways to limit the governor’s authority to issue statewide mandates; reduce the ability of public health workers to issue their own orders; clarify and narrow the executive’s authority regarding dictating personal behavior (for example, mask mandates); and impose legislative oversight before, during, and after emergency declarations.
In June 2020, the Liberty Justice Center (LJC) filed two lawsuits against the Illinois Governor. Under the state’s successive executive orders, Illinoisans cannot gather in groups greater than 50. Yet after George Floyd’s death, the governor personally participated in rallies with crowds numbering in the thousands as well as other gatherings in which people were not socially distanced. The governor told the Chicago Tribune: “It’s important to stand up for people’s First Amendment rights…it’s important to have the governor stand with them on issues that are important.” LJC is representing the Illinois Republican Party and Illinois Right to Life in two separate lawsuits that highlight the arbitrary nature of Illinois’ limits on group gatherings. Some groups can exercise their First Amendment rights, while others face restrictions and the threat of criminal penalties for violating the governor’s orders. LJC plans to file a similar case in Minnesota.
The Michigan Governor first declared a state of emergency in March 2020. When that state of emergency expired on April 30, 2020, the governor unilaterally extended her emergency powers, without the consent of the Michigan Legislature. This removed essential checks and balances in the Great Lake State. It also left millions of Michiganders without a say in how their state responds to the coronavirus. That say was important, especially since the governor’s orders were some of the strictest in the country. To give Michiganders a voice, the Mackinac Center Legal Foundation filed a lawsuit on behalf of medical providers. These providers were unable to schedule important medical procedures during the governor’s executive orders. With the help of SPN’s government overreach grant, the case made its way up to the Michigan Supreme Court. On October 2, 2020, power shifted back into the hands of the people. The court ruled in Mackinac’s favor, asserting the Michigan Governor’s use of emergency powers is illegal.
During the pandemic, Maine lawmakers have not returned to Augusta to provide oversight of the governor’s actions or check her emergency powers. While lawmakers hold the power to end the state of emergency, the governor is not required to consult them or seek their approval before exercising her power to close certain businesses and places of worship, mandate the use of face coverings, or extend the emergency proclamation. The Maine Policy Institute (MPI) is using this grant to produce a research report that examines the extent of legislative checks on emergency executive power in all 50 states. This research will be a key piece of MPI’s campaign to reform Maine’s emergency powers. With this research in hand, MPI will work to get every elected official in Maine on the record for reforming emergency powers. There’s currently a bill in the Maine Legislature that aims to reform emergency executive power, and MPI will work to encourage lawmakers to pass it when they are back in session.
Since early March, Rhode Island has been governed solely by the executive branch, issuing executive orders and imposing arbitrary and inconsistent regulations. There is no guarantee of any check by another branch of government. Further, there is no end in sight to this state of emergency. The Rhode Island Center for Freedom & Prosperity is using the grant to conduct research of emergency powers statutes in other states. The Center will compile a best practices report with suggested new legislative language to amend Rhode Island’s Emergency Powers Act, such that a more democratic form of governance is maintained during states of emergency, with defined roles and checks for each branch of government.
Toward the beginning of the pandemic, Wisconsin saw a gubernatorial declaration of a public health emergency, which was valid for 60 days unless the Legislature extended it. Wisconsin’s laws provided no guidelines or limits to the powers that could be exercised by the governor during that declared emergency. Additionally, Wisconsin law empowers the top official in the Wisconsin Department of Health to issue orders which are not subject to any legislative oversight or limited by a declared emergency. This two-part response led to litigation and confusion as Wisconsin responded to the coronavirus. The Wisconsin Institute for Law & Liberty (WILL) is conducting a comprehensive analysis of the emergency powers in Wisconsin’s surrounding states, as well as how those states handled the pandemic, to determine which states were best equipped to manage the crisis. WILL is then going to publish a custom set of policy solutions (focused on transparency and oversight) for Wisconsin based on the most effective policy tools implemented by those states.
