The Lockdown Showdown


Brewery owner Jordan Serulneck remembers feeling the pit in his stomach when he found out the state was ordering him to shut his doors—again. Serulneck was co-owner of Seven Sirens Brewing Co. Bethlehem, Pennsylvania. We have a loan from a bank that had to be paid back.

Three days prior to Thanksgiving, it was November 23, 2020. Pennsylvania Governor. Tom Wolf, a Democrat from Pennsylvania, just issued a snap shutter order requiring bars and restaurants in the area to shut down on “Thanksgiving Eve”, to avoid spreading COVID-19. It didn’t matter that Seven Sirens had gathered more than $10,000 in order to heat an outdoor area before winter, the governor’s orders banned indoor and outdoor eating.

Serulneck obeyed the state shutdown order when the pandemic began in March 2020. It happened just weeks after Seven Sirens first opened in mid February. After the promised 15 days of slowing down spread, Serulneck was forced to close his doors for weeks. Months later, bars, restaurants, and breweries finally allowed in-person service to be resumed. Next came the Thanksgiving shutdown. Then, another shut down occurred the next month. This time, indoor dining was prohibited from December 11 through the beginning of the New Year.

When Wolf imposed those new shutdowns late in 2020, Serulneck wasn’t the only business owner to groan—or to shrug. Many Pennsylvania businesses resisted the orders. Some received fines or were threatened with losing their licenses. Serulneck recalls that a television news van was left outside Seven Sirens the night before Thanksgiving to see “if we would be taken out in handcuffs for violating the governor’s orders.”

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It did not happen. But Pennsylvania was hardly the only state where a governor took drastic action to curtail commercial and social activity during the pandemic—not just when it began but months after the risks of gathering and dining indoors were well known to anyone who might voluntarily visit a brewery, restaurant, or store.

Andrew Cuomo (then governor of New York) set curfews, and ordered that bars sell food, if they were to serve alcohol. Michigan Gov. Gretchen Whitmer prohibited stores selling any other products than those necessary for the basic operation of residences. Many states issued broad mask orders by executive order, rather than following the legislative process.

Governors are generally granted broad powers to manage the state government during an emergency. This includes commanding it in case of a terrorist attack or a hurricane. An emergency, however, is a distinct, limited event that occurs over a short time. It requires immediate action.

We are now challenged to understand what constitutes an emergency, and when it triggers the special powers. These rules no longer apply. Governors are expected to be able to quickly respond to unanticipated circumstances using emergency powers. However, does an emergency not become something that can be handled by the government’s normal channels after it has passed?

Meryl Justin Cherryoff, the Executive Director of Georgetown Law School’s Project on State and Local Government Policy, said that it “goes from being an urgent issue to one that is chronic.” When does it cease to be a catastrophe in the sense we require decisive executive actions and when does the problem become something that needs the more deliberate steps of legislative action or consultation between the governors and the legislature?

In 2021 many state legislatures were faced with this issue. More than 300 bills to restrict governors’ unilateral emergencies powers in 45 states were introduced. Such measures have been approved in at least a dozen states—including Pennsylvania, where lawmakers and the state’s voters approved a pair of constitutional amendments restricting emergency powers. These laws were opposed by the governors’ offices as well as from the community of public health, who supported them with overwhelming support.

These discussions raise fundamental questions about the way democracies approach issues such as COVID-19 and other crises, from homelessness to climate changes. Do effective government need to be able to take quick and centralized decisions or can it depend on debates and decentralization for its effectiveness?

In a world where governments seem to be rushing to solve crises, the new wave of legislation is an opportunity to remind that serious and ongoing issues are not the same thing as emergencies that warrant abandoning normal lawmaking processes. In other words, it is not the same thing to give a governor power to deal with a fatal disease in the midst of a pandemic, and then six to eight months later to allow that person to decide unilaterally on Monday whether bars should be closed on Wednesday.

“You think, How much longer could this go on?’ Serulneck recalls how his brewery had to weather both a pandemic and the willful decisions of the chief executive. “How many more times can we keep going back and forth?”

Consent of the Government

Wolf must get consent from the people if the emergency is to continue for any longer. “The citizens of Pennsylvania should have a say in reining in this extended, unilateral power on display during this emergency,” Pennsylvania Senate Majority Leader Kim Ward (R–Westmoreland County) said on the state Senate floor in January 2021, as she announced a new plan to give the legislature a more prominent role in statewide emergencies. When checks and balances are absent, they’re the ones that suffer.”

These checks and balanceds were out of balance for 11 months during the pandemic. Wolf issued his initial emergency order in March 2020. It was to have expired after 90 days. However, the governor had renewed it on four occasions, and it was still in effect. He ordered schools closed and banned “non-life-sustaining” businesses from operating.

Sometimes the details were confusing. The truckers could still work but the trucks were not allowed to stop. The closure of small businesses that were not essential, like furniture shops, was ordered. Big-box retailers such as Walmart, however, had the right to continue selling tables and chairs alongside other “essential” products. Some Pennsylvanians lost the ability to use Laundromats, which left them without laundry facilities. However, they could still purchase booze at state-owned liquor shops. In protest of Wolf’s decision to close his economic advisors, he wrote a letter blaming him for “devastating economic fallsout” that his decisions had wrought upon Pennsylvania.

According to Daniel Dew of the Pacific Legal Foundation (a libertarian non-profit law firm), the pandemic demonstrated that states have broad emergency powers and governors can use them with little limitation.

The state legislature attempted to fulfill its duties but to no avail. Both the Senate and the House approved in June 2020 a resolution which ended Wolf’s March emergency declaration. The governor claimed that he was able to veto the measure because of the unclear language in the statute concerning the governor’s emergency powers.

Wolf was supported by the state Supreme Court, which effectively required that at least two-thirds in both chambers must vote to repeal an emergency declaration. It would have been easier to impeach the governor—a maneuver that requires only a simple majority in the state House and a supermajority in the state Senate—than to end his emergency powers.

Ward tried a new tactic almost ten months after the pandemic. Pennsylvania constitution permits the legislature in Pennsylvania to submit constitutional amendments. These must then be ratified by voters. Ward’s amendment in Senate Bill 2 limited emergency declarations to 21-day periods and required an affirmative vote by the legislature before they could be renewed.

Another advantage to this method is that the Pennsylvania governor doesn’t have the power of vetoing a constitutional amendment. The amendment is sent directly from the legislature to voters on the ballot.

Similar arguments were boiling in several state capitals during the second year of the pandemic. In Kentucky, the Republican-controlled legislature clashed throughout the early spring with Democratic Gov. Andy Beshear was the one who had instituted a new mandate to close schools, bars and restaurants, as well as limiting weddings and other events at offices and at funerals. Beshear dispatched state police in order to prevent a handful of church services from being held on Easter Sunday, 2020.

Similar rebukes were received by GOP-controlled legislatures from North Carolina and Kansas for the Democratic governors.

According to a Kaiser Health NewsMid-September’s report showed that at least 26 state legislatures had adopted laws restricting public health decrees following the outbreak. The count also covers rules that restrict governors’ executive power but includes those states where legislators have perhaps exercised excessive powers by banning private business from imposition of vaccine or mask mandates to employees.

Some of the conflicts between legislators and governors weren’t motivated solely by partisanship. In several states, Republican lawmakers led the charge against emergency powers wielded by Republican governors—including Idaho Gov. Brad Little was the one who renewed his COVID-19 Emergency Order a staggering 10 times before it was ended by state legislators. Indiana was represented by the Republican Governor. After a state legislature passed a law restricting his emergency powers in the event of a pandemic, Eric Holcomb sued. His authority was rescinded by the courts. Cuomo issued several emergency orders in March by the Democrats controlling New York’s legislature.

Certain state lawmakers, on the other hand have happily passed responsibility to executive branches. Six times Connecticut’s legislature voted to expand the Democratic governor, with the most recent vote being in October 2021. Ned Lamont is the emergency pandemic authority.

Get ready for next time

Spring 2021 saw many of the first efforts to limit gubernatorial emergencies powers, with a similar rush of activity expected in 2022. This is probably more about logistics than anything else. Most state legislatures only stay in session for short periods of time. This is most common in the first half year. These sessions were disrupted by the outbreak of the pandemic in 2020, and so the opportunity to have serious legislative discussion was presented early 2021. But the timing also reflected the frustration of state lawmakers who had been largely cut out of key decisions for the better part of a year—and who had been hearing plenty of complaints from pandemic-weary constituents.

Chertoff from Georgetown says that it is “problematic” for governors to do so many things at once by executive orders in a democratic country. It might have been possible to bring lawmakers in earlier, she says. This would have avoided some of the politicization which has plagued the pandemic response. It would have been easier to consider these policies partisan issues if members from both political parties had voted for restrictions on business or mandatory mask wearing.

However, states were already equipped with emergency-power laws and entered the pandemic prepared. These laws weren’t made with the long-term health crisis in view.

The Idaho legislature granted “tremendous power” to the governor when it passed an emergency-power law in the 1960s, inspired by fears of a nuclear attack that would disrupt the normal functioning of government, Idaho state Rep. Jason Monks (R–Meridian) told the Associated Press in March. His statement was that the pandemic had “been the first, I believe, when those laws have been really stressed-tested”. The Idaho legislature passed a limit of 60 days on emergency declarations by the governor a few weeks later.

Dew, a Pacific Legal lawyer has advised several state legislators on the details of revising the emergency laws. The group included Kentucky legislators, which saw one of the largest reforms ever passed.

The 1998 Kentucky emergency power law did not provide a way for the legislature to act in an emergency. Only the governor is allowed to call special sessions of the state legislature in order to address a crisis. The only time that Kentucky’s emergency-power law was enacted each year is for a couple weeks. Even though the system was clearly biased toward the executive, before the pandemic, the majority of its use was in response storms. 46 out of the 57 declarations made were related to them, according to research from 2020 by Pegasus Institute in Louisville.

Josh Crawford, the executive director at Pegasus which supported the Kentucky reform initiative, said that New Orleans was in an emergency when the levies were broken. But actually rebuilding the city afterward, that was an issue for traditional governance.

Crawford states that many people, correctly, allowed these governors to have a great deal of discretion in the first stages of the pandemic. This was when nobody really knew what was coming. However, by the time 2020 came around, everyone was asking different questions and pondering for longer periods of time. Crawford states that Crawford is not referring to an emergency. “You’re talking about an important policy question, and we have a procedure in place for dealing with important policy questions—but it’s not government by executive fiat.”

Kentucky state legislators passed the strictest limit on governor-level emergency powers since the outbreak of the pandemic. This was to restore equilibrium. A three-bill package initially passed in January 2021 caps emergency declarations at 30 days and requires legislative consent—which can subsequently be revoked at any time—for an extension. Additionally, the bills forbid the governor and attorneygeneral from suspending state laws while an emergency occurs. An emergency declaration that has expired or been ended cannot be renewed for more than 90 days.

Beshear opposed the bills but in February the legislature overrode him. After Beshear claimed that the laws would hinder Kentucky’s efforts to combat the pandemic, a state district court injuncted them. The Kentucky Supreme Court lifted the injunction and ordered the court to reconsider the case. The legal back and forth continued, but the Kentucky Supreme Court overturned that injunction in September. It instructed the district court to rehearize the case on its merits.

“The Supreme Court has confirmed what the General Assembly has asserted throughout this case—the legislature is the only body with the constitutional authority to enact laws,” House Speaker David Osborne and Senate President Robert Stivers, both Republicans, said in a joint statement on August 21, shortly after the state Supreme Court blocked the injunction against the law.

Kentucky’s outcome has obvious implications for the rest of the COVID-19 pandemic. This type of law is important for many other reasons. It is up to the state lawmakers to decide if there will be another crisis when they arrive.

Public Health Power Grab

It is no surprise that governors resist legislative efforts to limit their power. The public health system is the one that has been most vocal in opposition to any emergency-power reforms.

State after state has seen public health officials defend the use of arbitrary and aggressive rules to combat the limitations of democracy. They have defended Republican and Democratic administrations while showing bias towards unilateral power over any one political party.

For example, in Ohio, 18 health department representatives and 4 city departments opposed a plan by Republican Governor to remove some emergency powers. Mike DeWine. State legislators ignored this opposition and approved the bill, which restricts future emergency declarations at 30 days. Governors are also prohibited from issuing orders to stay home or closing down businesses. Public health experts escalated the rhetoric in their response. Mark Cameron from Case Western Reserve University was an immunologist who said that every hurdle favours the lack of a public health response. Ohio Capital Journal“Will cause infected and even death.”

A joint report was published by the Network for Public Health Law and National Association of County and City Health Officials in May. It condemned legislative attempts to limit governors emergency powers during pandemics. The groups stated in an official statement that they were dissatisfied and angry at the perceived failures of governors and other public officials to respond to the COVID-19 Pandemic. It is obvious that these laws can lead to avoidable tragedies.

The public health response to these bills has accurately described the circumstances—in this case, the voter dissatisfaction that is motivating the reforms—while exaggerating the potential consequences of deviating from the course plotted early in the pandemic. Public health professionals have helped to project the outcome of the pandemic, and develop mitigation strategies. But their recommendations, from the initial lockdowns to today’s stay-masked-even-if-you’re-vaccinated guidelines, have routinely failed to account for the practical, human considerations that are a fundamental part of crafting policy.

The May report specifically criticized a new Kansas law—passed by the Republican-controlled legislature and signed by Gov. Laura Kelly, a Democrat, without the drama that marked similar actions in other states—barring the governor from shutting down businesses during a pandemic. Two public health groups warn that protecting business owners’ rights not to be affected by executive decision would allow super-spreaders to run amok.

They stated that the imposition of time limits for emergency declarations and giving states legislatures an option in whether or not they are continued is “undermining the public health authority” which “will jeopardize both health and safety.” The groups also stated that it would be more difficult to promote health equity in a pandemic by limiting the power of public health.

Jay Inslee (Washington’s Democratic governor) gave a great example of the issues with the top-down approach public health officials have advocated during an interview on October TV. Over a year and half since the outbreak, many people have devised their own strategies to manage risk and cope with the disease. Inslee views it differently. “There’s only one person in Washington that has the ability to save these lives, and it happens it to be the governor,” he stated.

Inslee refused to answer a question about whether lawmakers should have a greater say in policies, such as the mandates for vaccines. “We need to act immediately.” Inslee was asked when the crisis could be considered to be over, least in the sense that it would permit lawmakers to participate, and he said, “because there are many metrics to consider.”

He stated, “If today we make decisions based on a flawed metric after the virus has mutated, it could lead to bad decisions that will result in thousands of deaths.” “We have to depend on the best science that now exists—and it changes as we learn about this, as the virus mutates.”

The legislature is out of the loop in this open-ended crisis, which breaks representative democracy’s feedback loop. The government is not responsible for protecting people from the devastating effects of deadly diseases. This makes it impossible to recognize the important role individual decision-making plays.

If the strongest argument in favor of unilateral emergency powers is their ability to allow states to respond more quickly to evolving threats, then evidence should show that states that have stronger gubernatorial power performed better during the pandemic. It’s difficult to prove this.

The three most affected states by the pandemic were Washington, Pennsylvania and Michigan according to Bureau of Labor Statistics statistics. However, Pennsylvania and Michigan saw more deaths per 100k residents than the national norm. Despite the fact that both states experienced early spikes, it is true that those that had adopted more strict pandemic policies (New York, California) have suffered the lowest deaths from the pandemic. Florida is the exception to this, despite media concern about its laissez-faire approach to COVID-19.

There was no doubt that political and partisanship played an important role in places where elected officials spent 2021 trying put governors’ emergency power back into democratically designated boxes. State legislators (and the voters) might have seen what was going on, determined that it was not working and made a decision to find something better. This does not undermine the effectiveness state government.

Always another emergency

COVID-19 currently drives emergency powers. Dew is concerned that the states with no limits to these powers may find themselves in future facing unilateral edicts. One of the many quasi-emergencies which allegedly require an immediate response by state governments may invite that open-ended, top down direction that the White House (or governor) has shown to be a hallmark for the pandemic.

Dew asserts that “that’s not how our government is supposed function.” The governor can use emergency powers to keep the ship afloat during a storm but not to set new courses.

Special interest groups that seek to implement large-scale changes in policy have not seen the threat of unilateral executive power as a warning. This has served as a guide. It has been a roadmap. Left-leaning activists, as well as some Democratic legislators are pushing for more power from governors and presidents in dealing with “emergencies”, which could be better described by Democrats and others to long-term and chronic problems.

Dew states, “We have already received calls from opinion pages calling for the declaration of emergencies to address issues like homelessness, climate change and drug abuse.” These are very serious problems that the government might choose to tackle. If it chooses to, however, it will have to go through the lawmaking authority of the state.

Just a week after Joe Biden was sworn into office, Senate Majority Leader Chuck Schumer (D–N.Y.) The Senate Majority Leader Chuck Schumer (D-N.Y.) called on the president to declare that climate change is a national emergency. Schumer said to MSNBC’s Rachel Maddow, “If there ever was an emergency it would be the climate crisis.”

He was echoing more than 300 organizations’ December 2020 letters to Biden and his transition team. They urged Biden’s transition team to invoke the National Emergencies Act for a solution to climate change. That would have given him the unassigned authority to implement the policies preferred by the groups. The incoming administration was urged to invoke the National Emergencies Act as a remedy for climate change. This would give Biden unilateral authority to impose policies favored by those groups, among other things. The Washington Post explained, Biden could use such an order to direct military spending toward green energy projects, ban oil exports, or impose tariffs on countries he thinks are polluting too much.

California provides an example of what that might look like—and why limits on executive power matter. Democratic governor. Gavin Newsom declared an emergency declaring that the “effects of climate change threatens the safety and health of Californians.” As a result of California’s continuing drought, Newsom immediately took his powers and created 10 pages of rules regarding California’s electricity and water utilities. The order was extended in October by the governor, who gave authority to the state waterboard to regulate water usage on all construction sites and decorative fountains.

Newsom is not able to make major changes by emergency order. In California, however, the governor can issue emergency orders that automatically expire after sixty days. The National Emergencies Act gives presidents the power to retake emergency powers that can be used indefinitely as long the commander-in-chief renews them every year. To freeze the assets and perpetrators in the Iranian hostage crises, President Jimmy Carter issued America’s longest-running continuing “national emergency”.

Cuomo, New York’s governor, was the first to make an emergency declaration against gun violence. In July, the state redirected $139 million to initiatives meant to reduce the spike in shootings that occurred since the outbreak of the pandemic.

This means that there will be more police. Cuomo established a new taskforce to prevent guns crossing New York’s borders. House Speaker Nancy Pelosi (D–Calif.) Nancy Pelosi (D-Calif.) has supported a federal emergency declaration similar to the one in place.

Cuomo’s order’s most striking part is its duration: “until further notification”. It’s not a temporary response, it’s permanent policymaking.

Dew says such abuses don’t just occur on the left. After Congress had refused authorization for spending, President Donald Trump used his emergency power to divert military funds to build his wall. Trump’s administration also caused one of the worst abuses power during the pandemic. It was the Centers for Disease Control and Prevention that banned evictions across the country. The federal ban on evictions was struck down by the Supreme Court, but New York City and California kept their own moratoriums. They were imposed through emergency orders as of December 20, 21.

We have learned from previous crises, such as the 9/11 attacks and the subsequent war on terror, that even temporary extensions of government power can quickly become permanent. There is a difference. This time, less people seem to believe that the wish-list measures they are seeking are meant to be temporary. Cuomo’s “until more notice” gun mandate shows. Governors and presidents use threats to keep the wheels of the state’s ship afloat, rather than steering it through the storm.

A Hardball Approach

Pennsylvania was the first and only state, since the outbreak of the pandemic to ask the question regarding the limits of its gubernatorial emergencies powers.

Wolf, the Democratic governor, objected to the Republican-controlled legislature’s attempt to cut off his emergency powers via constitutional amendment. Wolf, the Democratic governor, stated that having emergency declarations expired after 21 days “would hinder us in responding quickly, comprehensively and effective to a disaster emergency.” He added, in January 2021, that any declaration must be approved by concurrent resolutions of the legislature at least every three weeks. It would encourage partisan politics to be incorporated into commonwealth disaster response efforts. This could lead to a halt or slowdown in emergency response, when it is needed most. He warned that the limit could make it impossible for the legislature to meet in the case of a natural disaster.

However, the lawmakers quickly approved both amendments to the state’s constitution and put them on the primary ballot. “We are not saying that the governor can’t act,” state Sen. Ryan Aument (R–Lancaster) said during the floor debate. “We simply say that he cannot no longer act by himself without justifying his actions to the General Assembly.”

It was the first time voters had seen the real impact of pandemic lockdowns when Pennsylvanians went to polls in May 2021. They approved the constitutional amendments that limited Wolf’s emergency powers by narrow margins.

A few weeks later on June 8, the two chambers of state legislative used the newly-acquired constitutional powers to end the emergency order by the governor. The official “emergency” phase of the pandemic ended after more than 460 day.

Of course the pandemic continues to rage. But the debate about which policies are necessary to control it—lockdowns, mask mandates, vaccine passports, and whatever comes next—should be wholly separate from the debate about How those decisions are made. Although democracy is chaotic, neither governors or legislatures have any control over truth and safety, nor can they determine the appropriate balance between freedom and security.

Chertoff says that the separation of power matters. Chertoff says, “They are supposed to be checking each other.”

It is possible that states have gone too far to restrict governors’ ability to act when there is a real emergency. However, governors could have encouraged a tough approach by refusing to allow lawmakers to take part in the discussions over months and years. James Madison, a famous author who sought to limit state power, wrote: Federalist PapersTo counteract ambition, one must have “ambition.”

High-minded ideas aside, Seven Sirens Brewing Co. found some relief after the passing of constitutional amendments, and the subsequent nuetering Wolf’s emergency orders. Serulneck is aware that he may be in for another difficult winter. However, it seems like another state-mandated shut down appears to be on the horizon.

The risks are well-known to anyone who visits Serulneck’s taphouse within the next months. The new omicron variant is a reminder that COVID-19 is still a crisis—but it’s not an emergency.

Without the intervention of the state, individuals can conduct their own risk assessment. Serulneck states that control-obsessed politicians have “less legal ground” to stand on. “When the emergency power powers were taken away, that basically put an end” first published The Lockdown Showdown