June 25, 2021
Spotlight on legislative sessions: States reform emergency powers to give the people of their state a voice
If you didn’t pay attention to your governor before the coronavirus, you probably do now. As the crisis took hold in March 2020, governors took center stage. It was the swift action of states—and specifically governors—that ensured our healthcare system was ready to confront the challenges of COVID-19.
But these actions also shut down businesses, closed schools, limited public gatherings, and forced people to stay in their homes. Many businesses, especially small and local stores, could not withstand the prolonged shutdowns and had to close their doors permanently. Millions of people lost their jobs and ways to provide for their families.
What’s more, most of these decisions were made without input from the American people. Many governors exerted unilateral control over their state’s response to the coronavirus—excluding state legislatures and violating the important checks and balances provision that is essential to our constitutional form of government.
This unilateral control continued for months, and in many states, continues today—more than a year later. In fact, 36 states are still under a state of emergency.
Over the past year, a Network of policy organizations has been working to reform their states’ emergency powers, restore balance of power, and give Americans a say in policies that deeply affect their lives.
State lawmakers are listening. Legislatures across the country introduced more than 300 bills in 2021 that sought to reform governor emergency powers. And nine states, including Arkansas, Colorado, Indiana, Kansas, Kentucky, New York, Ohio, Pennsylvania, and Utah adopted legislation to limit or reform their governor’s authority during an emergency.
In March 2021, Arkansas passed a law that gives the state legislature a bigger say in whether to terminate emergency declarations or orders issued under those declarations. The legislation also limits the governor’s emergency to 60 days.
Colorado was one of the first states to make changes to its emergency powers. In July 2020, the Colorado Governor signed legislation that requires the governor to hold three public meetings per year to answer questions from the state legislature.
The Indiana Legislature passed a bill that limits the Indiana Governor’s powers during an emergency. Specifically, during a crisis such as the coronavirus, the bill allows the Legislature to reconvene and discuss legislation related to the emergency. Before this bill passed, the Legislature could only reconvene and review emergency policies with the governor’s permission. The bill would also allow state lawmakers to end the governor’s state of emergency. The Indiana Governor vetoed the legislation in April 2021, but both the Indiana House and Indiana Senate overrode that veto—making the legislation effective immediately.
Kansas lawmakers passed legislation that reforms the Kansas Emergency Management Act by providing Kansans due process rights, limiting the governor’s powers by instituting critical checks and balances by ensuring the participation of elected representatives. The Kansas Policy Institute‘s, litigation arm, the Kansas Justice Institute, sued Douglas County on behalf of a small business owner to protect their due process rights during the pandemic. KPI then launched legislative efforts to dramatically reform the state’s Emergency Management Act which resulted in the passage of SB 40 over the governor’s objections.
The first-in-the-nation legislation placed county health officers in an advisory capacity and strengthened county commissions, gave legislative bodies explicit oversight of continued emergency action, and ensured that all Kansans had due process rights when subject to shutdowns, mandates, and the like during an emergency.
The Kentucky Legislature voted to override the Kentucky Governor’s veto of Senate Bill —legislation that would restore constitutional government by placing safeguards on executive emergency powers. In June of 2020 the Pegasus Institute produced a report on state declarations of emergency and their Executive Director testified on the subject before the Interim Joint Committee on the Judiciary. Pegasus noted the passage of this legislation brings the Founders’ vision of limited and balanced government back to the Commonwealth of Kentucky by reining in unchecked government overreach.
In a landmark decision, the Michigan Supreme Court struck down the Michigan Governor’s unprecedented use of emergency powers in October 2020. The court unanimously decided that the governor’s attempt to continue a state of emergency after April 30, 2020, without legislative approval was illegal. In a 4-3 decision, the court ruled that the Emergency Powers of Governor Act of 1945, which the governor argued allowed her to maintain unilateral control for an indefinite period, is unconstitutional. The Mackinac Center Legal Foundation filed the case on behalf of three medical practices that were unable to provide necessary care and a patient who was unable to receive care under the governor’s previous orders. Every outlet in Michigan and hundreds of national outlets covered the case. Notably, the Monday following the decision, a Wall Street Journal editorial called the Mackinac Center the “legal firepower” behind the case.
In March 2021, the New York Governor signed a law that repeals Chapter 23 of the laws of 2020, which expanded the governor’s powers to respond to the pandemic through executive orders.
The Buckeye Institute has reiterated over the past year that while the governor has broad powers, he does not have limitless powers. In March 2021, the Ohio Legislature overrode the governor’s veto of legislation that provides legislative oversight of the governor’s emergency orders. Buckeye noted the use of extraordinary emergency powers must be subject to democratic checks and balances, and applauded Ohio’s General Assembly for enforcing this check while still allowing Ohio to respond to genuine emergencies.
In a special election, Pennsylvania voters enacted two constitutional amendments that will limit the governor’s emergency powers. The Commonwealth Foundation noted the two amendments will reduce the length of a governor’s emergency proclamations from 90 days to 21 days as well as require that the General Assembly approve of an extension beyond three weeks. Additionally, the General Assembly now has the power to end a state of emergency by a majority vote.
The Utah Legislature passed a bill that clarifies how emergency authority can be exercised relating to religious worship services and other religious exercise. The bill prohibits state and local agencies from imposing or implementing a regulation that substantially burdens an individual’s exercise of religion—unless that agency demonstrates it is the least restrictive way to accomplish the government’s goal. Sutherland Institute noted how this new law creates important guideposts—and clear limits—for state and local governments’ emergency powers over religious gatherings in a public health crisis.
The Libertas Institute highlighted how Utah also passed a law to limit restrictions on public health orders and emergency declarations, limit executive authority, and impose significant legislative oversight and control into the process. Libertas noted that while these new restrictions on emergency powers aren’t perfect, they are better.
Although the state itself didn’t pass a law reforming executive powers during an emergency, the Wisconsin Supreme Court issued a ruling in Fabick v. Evers that declared the Wisconsin Governor’s use of multiple, consecutive emergency declarations unlawful. The Wisconsin Institute for Law & Liberty sued the governor in August 2020 over his emergency declarations, but the case was stayed as a result of the Fabick original action. WILL noted this decision ensures that Wisconsin’s constitutional order cannot be suspended for unlimited periods of time as long as the executive branch can justify an emergency declaration. In 2020, with help from SPN’s new grant program, WILL conducted a comprehensive analysis of the emergency powers in Wisconsin’s surrounding states, and developed policy solutions to improve Wisconsin’s emergency response.
SPN grant program supports solutions for smart state emergency powers
Scoring executive emergency powers: How does your state rank?
