The State And Local Leaders Who Aren’t Ready To Give Up Pandemic Power

By Steve Miller for RealClearInvestigations

While many government leaders sound the all clear message on COVID-19, dropping vaccine restrictions and mask mandates, some states and municipalities are clinging to the emergency powers that allowed them to govern people’s behavior in unprecedented ways.

Because they were required to oversee emergency funding, the officials have continued to issue emergency orders despite the fact that many of the shops and restaurants are still packed. The pandemic worries have now faded away and the normality of life has returned to its former self.

State emergency orders are issued to address temporary threats and weather emergencies. They are typically wrapped up within a few weeks or days. Many governors issued executive orders soon after the outbreak of the coronavirus in March 2020. Governors were empowered to prohibit crowds and shut down businesses. They also had the power to impose vaccination and mask mandates. In imposing restrictions, they have deferred also to nonelected officials of public health.

Critical lawmakers are now challenging the power to take such sweeping actions – and keep the measures in place indefinitely – saying pandemic lockdowns exposed leaders’ unduly stringent authoritarian impulses.

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Ruling by decree over an extended period during the pandemic “is part of a broader move to condense power to the executive branch,” said Nick Murray, policy analyst at the conservative Maine Policy Institute, who has studied emergency policies. “You see these things come into play during a crisis and then [remain in place] to give more executive power,” Murray said. “It’s a theme that has devolved into bureaucracy.”

Nevada’s state of emergency was declared permanent, though state legislators failed to pass legislation that would limit the powers of Democratic Governor. Steve Sisolak.

Kansas has a Gov. Laura Kelly (also a Democrat) extends the emergency authority to Kansas until January 2023. She has clung to the order even as the state’s director of public health – a now-estranged former political ally – questioned the need for a continued state of emergency.

North Carolina’s Democratic Governor. Roy Cooper in November vetoed legislation that would require wider input from elected leaders if he wished to continue his ability to issue restrictions under a declared emergency. The Republican-controlled legislature got around the veto by attaching provisions to the state’s budget bill, which prevent Cooper from again declaring a state emergency and exercising singular authority for longer than 30 days. Yet Cooper last week extended the emergency due to expire in April even as cases waned. 

Lawmakers in most states have either passed laws or introduced legislation aimed at curtailing governors’ emergency authority. They prohibit the use of mask mandates, business closings, and limit emergency orders’ time durations.

There are currently twelve states with emergency orders, including seven that have a Democratic governor or legislature. Rest of the states either have ended or announced a termination date.  

The advocates of an extended crisis, including many from the health care industry, claim that any attempt to restrict the governors’ and officials’ ability to deal with future crises in the future is risky.

“You can’t have this sweeping legislation based on a single event,” said Lori Tremmel Freeman, CEO of the National Association of County and City Health Officials, which represents workers in 2,800 municipal public health offices and which issued a report last year criticizing legislative moves to rein in the authority of public health officials and governors. “There is a balance that can be found, but some of these have gone to the opposite end of the spectrum that allows them to prohibit [health officials] from doing anything.”

Jason Mercier (director of the Center for Government Reform, Washington State), is largely in agreement with Freeman. “We’re not as worried about emergency orders; it’s the restrictions that need to be subject to legislative oversight,” he said.

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States have varying laws regarding the ending of emergency power; in some states, only the governor can end an emergency. Others allow legislators to end an emergency. Mercier observed that his state has a Democratic governor party. Jay Inslee, who also holds the control of the statehouse can extend a state-of-emergency indefinitely. Inslee has repeatedly stated that he is able to rule alone without any agreement.

“What we have here is one person behind closed doors enacting policy,” Mercier said.

There is also a struggle for emergency powers within the states. In early 2020, some cities and counties declared an emergency. They used them to put in place local restrictions. This often led to political conflicts with the state leadership.

Texas’s leaders have ignored the Republican Governor. Greg Abbott’s COVID-19 rules, insisting they have the right under a local state of emergency to impose masking and other measures. Abbott asserts he can issue emergency orders. This would nullify any local mandates issued by the same emergency state statute. Legal battles have moved through the court system since summer 2021.

Some municipalities, like the city of Phoenix, have refused to set a date to lift the declaration. Stephanie Barnes, spokeswoman for the City Council, did not return an email seeking comment.

“Most existing emergency management statutes, with some exceptions, are blunt instruments,” said Luke Wake, an attorney with the California-based Pacific Legal Foundation. The group of conservatives represented several companies in court cases to allow them to continue open.

“The orders are either on or off, but as long as they remain in place the governor has all of the power,” Wake said. “This experience has taught us that we need to rethink how broad the powers we give these people are. This is something that most people have never considered. [COVID-19] gave us all a good reason to do so.”

California Gov. Gavin Newsom locked down people and closed businesses under the state’s emergency powers act, which remains in place despite persistent calls by mostly Republican forces for it to be removed.

Governors from both parties have faced dozens of suits challenging their emergency powers. Plaintiffs can range from ordinary citizens to businessmen and advocates for open meetings, but they all claim emergency powers in some locations are not constitutional. These cases were settled by agreements or restrictions.

Wake and the Pacific Legal Foundation are handling the case of Ghost Golf, an indoor recreation center in Fresno that challenged Newsom’s order to close. Other businesses sued Newsom to keep their doors open. However, they dropped their claims when Newsom permitted businesses to open June 2021. Ghost Golf continues to be litigated.

The governor lifted the restrictions, but he could reimpose those at any point as long as the emergency exists,” Wake said. “With every variant, people have to worry that the reason the governor hasn’t allowed it to lapse is to make it possible for him to take the same action again.”

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Michigan had a four-three state Supreme Court decision to end the massive emergency powers that Gov. Gretchen Whitmer was the one who issued the most extensive and specific restrictions during the initial year of the pandemic. At one point, her orders prohibited residents from purchasing specific “nonessential” items, including house paint, while the state’s recreational marijuana dispensaries were allowed to remain open.

Whitmer sidestepped the court ruling by handing over those same powers to the Michigan Department of Health and Human Services, where a political appointee and public health official enforced her orders. Unlock Michigan is a protest group which has sued Whitmer and her government, challenging her authority as well as her health department.

“To upend society and destroy people’s business, you should get some elected officials involved,” Fred Wszolek, a spokesman for the group, said. “We want whoever takes control in an emergency to have checks and balances.”

Governors have the power to impose their will on anyone, not just Democrats. When legislatures in three GOP-controlled states passed bills curbing the emergency powers of chief executives, the Republican governors of Ohio, North Dakota, and Indiana vetoed the bills. These vetoes, however, were overruled and the bills became state law.

Strong emergency powers are also supported by the argument that only one individual can identify a situation to be considered a “lethal health crisis” because state legislatures don’t work full-time.

However, the full-time legislatures of four of the worst affected states during the pandemic are all in place. All four (Michigan, California, New York, and Pennsylvania) are led by Democratic governors, although two of them – Michigan and Pennsylvania – have Republican-controlled legislatures.

Andy Baker-White, senior director for state health policy for the Association of State and Territorial Health Officials, noted in a recent legislative briefing to association members that maintaining legal authority to impose mask-wearing and other restrictions is “crucial” to preparing for outbreaks.

Baker-White said in an interview with RCI that some of the proposals to limit emergency authority “are like tying a hand behind your back before getting into the boxing ring.”

“These powers and authorities are part of the toolbox to prevent the spread of infectious disease,” he added. “These often need to be flexible and swift when dealing with these diseases. Limiting these powers can have an impact on the ability to respond, and without an adequate response, a disease can cause more harm.”

State lawmakers across the U.S. are focusing on state legislators’ ability to rule in an authoritarian manner, however.

“It’s so bonkers that any legislature did not put an expire time on these emergency orders,” said Wszolek of Unlock Michigan. “When you consider what these powers allow, we really need to think about that. This is a muscle that really got used.”

Real Clear Wire permission granted permission for this syndicated article.

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