Rein in the governors: How to prevent emergency powers abuse after COVID

If we’ve learned anything in the past few years, it’s that emergency power is easily abused. During the COVID-19 pandemic, governors across the country claimed unprecedented power to combat the virus. Businesses were shuttered, schools closed or moved online, vaccinations were required to eat at a restaurant, see a musical, or even do your job.

When the shutdowns were announced, we were told that they were temporary measures to slow the spread of a disease we knew little about. In those uncertain weeks, some use of emergency power might have made sense. But governors around the country took the pandemic as an opportunity to vacuum up power that rightfully belonged to elected lawmakers. In many cases, arbitrary and destructive decisions were the predictable result.

We don’t need to rehash the myriad ways emergency powers were used and abused during the COVID pandemic. But now that the biggest threats of the pandemic appear to be behind us, it’s important to prevent government power from being abused during the next emergency.

More than two years after the pandemic began, governors across the country are still fighting to preserve the emergency powers they claimed. For example, Kentucky Gov. Andy Beshear fought tooth and nail to prevent emergency power reform long after the emergency had passed. And California Gov. Gavin Newsom has said that he will retain his expansive emergency power until the pandemic is “extinguished,” a goal he has since publicly acknowledged is impossible.

Why are these governors so intent on preserving expansive emergency power? Simple: emergency power is seductive and useful for political ends. Ordinarily, getting policy enacted into law means a governor must persuade lawmakers, negotiate with interested parties, vet ideas and deal with public scrutiny. Consensus building takes time; it is far easier to enact policies into law with the stroke of a pen.

Now that governors have had a taste of rule by executive order, they have an appetite for  one-person rule. In the past two years, states have issued a host of “public health” emergency declarations on controversial political issues such as gun rights, racism and climate change. New York Gov. Kathy Hochul made the strategy explicit: “It’s like fighting a pandemic[.] We have a pandemic of violence in our streets, and we will treat it like we’re fighting this COVID pandemic: with science and data and smartness.”

So far, governors have exercised power under these emergency orders with a measure of restraint that they did not show during the COVID-19 pandemic. But the potential for abuse or misuse is nearly endless.

When legislators in Maryland declined to halt a gas tax hike, there were calls for Gov. Larry Hogan to declare a “State of Energy Emergency” and unilaterally stop the increase. Fortunately, Hogan did not heed the call to circumvent the legislature. But the lessons of recent years should persuade us that some governors may not hesitate to abuse emergency power in this manner.

To prevent future emergency power abuses, a two-pronged approach is needed. First, lawmakers must take up their lawmaking responsibilities once again. Emergency power statutes should be reined in and reformed. States should look to the Kentucky legislature’s bill restricting the governor’s emergency powers, which was passed into law over the governor’s veto. Emergencies should not be open-ended invitations to enact “wish list” policies that wouldn’t find support in the legislature by normal processes.

Second, the courts must enforce core separation of powers doctrines like the prohibition on lawmakers delegating expansive powers to the executive. Newsom has been delegated all the “police power” of the state of California — essentially unlimited power. Courts have been reluctant to call such expansive emergency powers provisions into question. But recent decisions by federal courts invalidating, for example, the Centers for Disease Control and Prevention’s eviction moratorium and mask mandate on public transit are encouraging developments in this respect.

In our democratic republic, no one person should be vested with as much unchecked power as governors were during the COVID-19 pandemic. State laws that delegate the power to governors to make law should be held unconstitutional so that lawmakers are incentivized to legislate, rather than enacting vague laws that can be abused.

Thankfully, it appears that the worst of the pandemic is behind us. But the pandemic revealed the dangers of unchecked executive power. Now is the time to erect bulwarks against future abuse. We need to all stand up and push back against executive power run amok.

Daniel Ortner is an attorney at Pacific Legal Foundation, a nonprofit legal organization that defends Americans’ liberties when threatened by government overreach and abuse. Follow him on Twitter @dortner1.