March 11, 2021
Spotlight on state legislative sessions: State think tanks work to reform emergency powers and protect Americans from government overreach
At this time last year, you were probably glued to your television, anxious for more information on a new virus sweeping across the globe. You may remember your governor issuing several executive orders in the name of protecting public health.
At the onset of the pandemic, states and their governors took charge of responding to the coronavirus, and many of their directives saved lives by ensuring our healthcare system was able to handle the challenges of COVID-19. But as the crisis continued into the summer and fall, many governors took unilateral control over their state’s response, excluding the state legislature from the process. Doing so violated the important checks and balances provision that is essential to our form of constitutional government. What’s more, it stripped the American people of a say in policies that upended their lives. These directives closed schools and “nonessential” businesses, forced people to stay in their homes, and limited travel and gatherings.
More than a year into the pandemic, several states are still under a state of emergency with no expiration date in sight, and many governors continue to implement policies without input from the legislative branch.
Emergency powers give governors the ability to make quick decisions in a crisis. The policymaking process is slow, and during a natural disaster government needs to act fast. But once that initial emergency passes, the American people need to have input on policies that impact their lives and livelihoods.
Thankfully, there is a Network of state policy organizations that are working to reform their state’s emergency powers, restore balance of power, and give the people of their state a voice. Below are the states working on reforming emergency powers during their legislative sessions.
The coronavirus, and Alabama’s response to it, revealed major blind spots in how the state code and constitution allow Alabama’s government to operate in times of emergency. The governor, for example, has issued over two dozen emergency declarations without the consent of the whole legislature or public debate. Alabama Policy Institute is dedicated to seeing important changes made this legislative session that will protect the citizens of Alabama from such executive overreach. The Alabama Legislature is considering two bills related to emergency powers. One bill would require executive officials to seek legislative extension of emergency powers after fourteen days. Another would empower the Legislature to call itself into session so that it can hold officials accountable throughout the year.
Preventing and highlighting government overreach during the coronavirus has been a priority for the Grassroot Institute of Hawaii. In January 2021, Grassroot released a policy brief that argues Hawaii’s emergency-management laws need to be reformed to prevent the extensive exercise of unchecked power by the governor. The Hawaii Legislature is taking note. In February 2021, the Legislature considered a bill that would amend the state’s emergency management statute to require the approval of the Legislature to extend a state of emergency. Grassroot testified on this the bill and noted it would take an important step toward addressing the lack of a meaningful legislative check on the governor’s emergency powers. Through media placements, webinars, and other outreach, Grassroot is highlighting the importance of respecting Hawaiians constitutional liberties during crises like the coronavirus.
In February 2021, the Idaho House passed a bill that limits the Idaho Governor’s emergency powers. One part of the bill limits the number of days the governor can issue emergency declarations to 60.
On March 1, 2021 the Kansas Senate passed a bill that limits the powers of the Kansas Governor. The legislation requires a legislative committee and the Attorney General to approve of the governor’s executive orders issued during a state of emergency. The Kansas Policy Institute has been working to reform the state’s emergency powers law. Last fall, KPI conducted a statewide public opinion survey to determine what type of changes should be made.
In February 2021, the Kentucky Legislature voted to override the Kentucky Governor’s veto of Senate Bill 1—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.
During this legislative session, the Maine Policy Institute seeks to reform emergency authority to put an end to some of the abuses of emergency power that occurred in 2020. Maine law allows the chief executive to declare and extend an emergency declaration without legislative oversight or approval. In January 2021, the Institute published research that examines the legislative checks and balances on emergency power in all 50 states. With this data, Maine Policy Institute believes it can help enact bipartisan legislation this session that protects the individual rights of Maine citizens during emergency declarations.
Thanks to the Mackinac Center for Public Policy, in October 2020 the Michigan Supreme Court ruled the Michigan Governor’s attempt to extend the state of emergency past April 30, 2020 is unconstitutional. The court also said in a 4-3 ruling that the Emergency Powers of Governor Act of 1945, which the governor used to justify unilateral control for an indefinite period, is unconstitutional. Unfortunately, despite this ruling, the Michigan Governor continues to exert unilateral control over the state’s COVID-19 response. The governor is continuing to issue orders for an indefinite period through administrative powers granted to an unelected state official in a different law.
Because North Carolina’s state of emergency has no time limitation, the governor has consolidated all power in the executive branch and ignored constitutional requirements and input from the Legislature. The John Locke Foundation is launched 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.
Pandemic disaster declarations have given the Pennsylvania Governor unprecedented control of the state’s economy—and his arbitrary policies have decimated small businesses. But the Commonwealth Foundation is poised to rein in this dangerous concentration of power. The Foundation is working with lawmakers to pass a state constitutional amendment that requires the governor to obtain legislative approval before renewing his emergency powers, making Pennsylvania’s future emergency responses more accountable to voters. Once passed, the amendment will go before voters on a statewide ballot referendum, giving Pennsylvanians a chance to permanently enforce checks and balances.
The Beacon Center of Tennessee is working with lawmakers to craft reforms that create proper limits, timeframes, and checks and balances against state and local executive power. The Tennessee Legislature is considering a bill that reforms the Tennessee governor’s emergency powers. This legislation would provide a necessary check on executive power by giving the Legislature the ability to vote to end a governor’s statewide emergency declaration. Beacon noted emergency powers should be limited, specific, and subject to legislative oversight.
Legislation that would restrict the emergency powers of the governor, mayor, and health officials is making its way through the Utah Legislature. SB195 makes several changes to the state’s emergency powers laws, including limiting the duration of a public health order to 30 days. The Libertas Institute has been working with Utah lawmakers to reform the state’s antiquated Emergency Management Act and curtail gubernatorial and mayoral authority during an emergency.
In February 2021, the Wisconsin Institute for Law & Liberty released a study that examines Wisconsin’s emergency powers laws and provides recommendations for reform. The report notes these laws and have failed to protect liberty and the separation of powers during the pandemic. WILL is encouraging lawmakers to enact reforms that: limit emergency declarations from 60 days to 30 days; require orders to be promulgated as rules to ensure proper legislative oversight; and
impose legislative oversight of local emergency orders, among other recommendations.
The MacIver Institute is also working on emergency powers reform in Wisconsin. MacIver recently encouraged the state Supreme Court to make a decision in in Fabick v. Evers—a challenge to the Wisconsin Governor’s authority to declare and govern under states of emergency.
Although no legislation has been introduced, some Wisconsin lawmakers are making the case for restoring legislative oversight to the Wisconsin Governor’s emergency powers.
If your organization has an update to this piece, please email updates@spn.org.
