By Nick Murray, policy analyst at the Maine Policy Institute
Last spring, governors across the country issued states of emergency in response to the coronavirus. But as the crisis dragged on, some governors asserted unilateral authority over their state’s response, excluding the legislature and violating the important checks and balances that are essential to our form of constitutional government.
At the peak of state-ordered lockdowns, 316 million Americans across 42 states lived under a stay-at-home order. Millions witnessed never-before-seen usage of their governor’s emergency powers, while some wondered how a country built on individual liberty could fall so far from its founding ideals.
To better frame this crisis of leadership in America, Maine Policy Institute developed a first-in-the-nation scorecard of the 50 states’ emergency powers laws. The analysis found that far too many states do not strike an adequate balance between the legislative and executive branches, enabling runaway executive authority under declared states of emergency.
Every state received a numerical score between one and 20 across five categories for a total score of up to 100 points. The highest score denotes the most stringent executive powers, allowing for the greatest accountability from the people’s branch, the legislature. The lowest score denotes the weakest check on executive powers and the greatest potential threat to liberty.
The worst-ranking states overall were Vermont, Illinois, Ohio, and Hawaii because they bestow on their governors the sole authority to determine when and where an emergency exists, and when an emergency ceases to exist. Nearly one-in-four states have this arrangement.
Vermont earned the lowest score of all because it also allows certain emergency orders (relating to energy transmission or the environment) to remain in effect up to 180 days after the emergency has been terminated.
Kansas and South Carolina placed first and second, respectively, because in both states, for an emergency declaration to continue past the first 15 days, the governor must earn legislative approval. In Kansas, the legislature may only approve one 30-day extension after the initial 15-day period, and a unanimous vote of the State Finance Council is required for successive extensions.
The scorecard also highlights various quirks in states’ emergency statutes, some good and some bad.
While governors and executive officials should have the ability to respond quickly to an imminent crisis, the ultimate responsibility for determining public policy rests with state legislatures. There is a reason that Congress is the first branch listed in the US Constitution.
To this end, state legislatures must assert their constitutional duty to provide a check to their governors, even in emergency situations.
No matter who occupies the governor’s office, state lawmakers should ensure that they are in appropriate counterbalance to the executive branch. This should include requiring a legislative vote to extend a state of emergency.
Additionally, a law requiring any emergency order to sunset, or automatically lapse, if not ratified by the legislature would ensure that the governor consults with legislators before issuing potentially damaging edicts.
States could also allow the legislature to nullify specific emergency orders, as New York does, as well as prohibit the governor from issuing previously nullified orders. Lawmakers should be able to strike down an egregious order without taking the state of emergency with it.
Crucially, none of these reforms would inhibit a governor’s ability to respond in a crisis.
Other substantial, liberty-strengthening reforms include requiring that emergency orders be only issued by the governor, that those orders are “narrowly tailored,” and that challenges to emergency orders receive expedited judicial review. This would signal to courts to weigh any orders against the liberty of the aggrieved party, not simply chalk it up as a “political question” to punt back to the legislature.
For those who value constitutional government, the separation and diffusion of power between co-equal branches must be paramount. As the American founders warned, concentrated power most certainly will bend towards tyranny.
Read the full report here.