Connecticut’s governor just announced that the state is preparing for the coronavirus emergency to last until at least February. That’s nearly 11 months after Gov. Ned Lamont issued his first emergency declaration dealing for responding to covid-19.
“Covid-19 remains a global pandemic capable of spreading quickly within our state. That risk would be heightened substantially if the existing emergencies expired as scheduled on September 9,” Lamont wrote
in his proclamation this week.
In fact, the governor even expanded the scope of his emergency powers, saying he needed them to preside over the reopening of schools, administer this year’s elections and respond to more scientific discoveries about the way that the coronavirus spreads and affects human health.
But the longer governors rely on emergency declarations to exert extraordinary executive powers, the more resistance they face. Republican lawmakers or outside groups have challenged governors’ emergency declarations in Arkansas, Colorado, Illinois, Massachusetts, Michigan, Oregon and Wisconsin. Meanwhile, legislators in Idaho, Tennessee and Utah have tried to rein in the powers their governors are using.
So far, though, governors have won most of those fights.
“Courts, legislatures and societies have generally been satisfied to let the executive on the hot seat manage the problem,” said Scott Burris, a law professor and the director of the Center for Public Health Law Research at Temple Law School.
As long as the public health crisis exists, governors can largely exert those powers, added James Hodge, a law professor at Arizona State University’s Sandra Day O’Connor College of Law and the director of the Center for Public Health Law and Policy at ASU.
“What you have in place in every state is the legislature speaking to the authority it gave to the governor years ago in relation to how to address these emergencies,” Hodge said. “The legislature spelled it out. The governors are relying on that legislative delegation of authority, they’re acting pursuant to it, and it’s the governor’s job to make that happen.”
“The governor is the most politically accountable office in any state. He or she could lose their job if they don’t do it well,” he added. “What that means is, it’s the governor’s job to make that happen, not the legislature’s job, to direct the show… It’s not the legislature’s job to micromanage the governor. It’s not the legislature’s job to tell the governor: Here’s what to do.”
Established procedures for unprecedented times
The emergency provisions that governors are relying on to respond to covid-19 were designed to address short-term catastrophes: fires, hurricanes, environmental disasters. So they don’t contemplate how to manage an emergency that lasts for months or years. And when governors exert emergency powers, their actions usually don’t affect the whole population of a state. Some states, for example, have declared public health emergencies around opioids for years, but the new rules they put in place affect only a small part of the population.
“Some of those emergencies are more of technical emergencies,” said Burris, the Temple law professor. “They are emergency laws that allow certain kinds of funding measures to be taken and different kinds of regulations to be suspended. Obviously, the opioid crisis is a big deal for society, but you’re not going to have to fight. Everybody’s on board with that one. You’re not going to have fights over masks, closing down churches and the huge economic impact.”
“[Coronavirus] is just quite a different order of magnitude,” he said.
Another factor that is drawing attention to the covid-19 emergency declarations is the fact that more of the burden for responding to the pandemic has fallen on the states than it would for other nationwide disasters, because of the federal government’s bungled response. Most of the restrictions put in place to limit the spread of the coronavirus have come at the state or local level.
(Burris noted though that the decision by the U.S. Centers for Disease Control and Prevention to ban evictions nationwide could open the door to far more aggressive federal restrictions. If the CDC can use powers that it normally uses for quarantines to intervene in the housing market throughout the country, he explained, it would hardly seem to be a stretch for the agency to impose a nationwide mask mandate, to close restaurants or to limit the size of public gatherings. Those are normally powers exercised by states, while the federal government provides financial support, medical expertise and testing capability. “It’s dramatic,” Burris said of the CDC eviction moratorium, “but it’s particularly dramatic in the context of federalism and leaving these types of things to the states.”)
Hodge, the Arizona State law professor, stressed that there is no question from a public health standpoint that an emergency still exists. But the legal mechanisms states use to combat it may shift, he predicted.
“Patience for this is going to wear off at some point. And I think you’ll start to see this fall a lot of states drop their emergency language and proceed with more routine public health measures to combat covid-19,” he said. “That may especially be true if we get a successful vaccine.”
Many challenges, few successes
At a time when governors are ordering businesses to close, or people to wear masks in public, or keeping big groups from attending church together, though, many lawmakers have tried to reassert their authority.
The Idaho House, for example, passed a resolution that tried to end the state of emergency declared by Republican Gov. Brad Little. The measure did not pass the state Senate, though, because senators worried that the legislation went beyond the scope of the agenda set for the special session that brought lawmakers back to Boise. Some lawmakers also worried that ending the state of emergency would jeopardize the state’s ability to get federal relief money.
In Utah, lawmakers declined to extend an emergency declaration issued by Gov. Gary Herbert, a Republican. Herbert responded by issuing a new emergency declaration instead.
The Tennessee House, meanwhile, is holding hearings on the extent of Gov. Bill Lee’s emergency powers. “When we look at it there are a lot of powers granted when you declare a state of emergency and you can almost become one government without any branches if you are not careful and have the wrong person in the governor’s office,” House Speaker Cameron Sexton told a local TV station.
Other governors have had to defend their emergency declarations in court. Judges have often looked to a U.S. Supreme Court case from 1905 for guidance. The landmark decision in Jacobson v. Massachusetts, upheld Massachusetts’ mandatory vaccine law for smallpox inoculations. It cleared the way for public officials to take drastic actions to preserve public health, as long as those measures were reasonable.
“Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others,” the court wrote.
But some of the legal arguments have been even more arcane. In Michigan, for example, Gov. Gretchen Whitmer, a Democrat, has avoided having to get legislative approval to extend her emergency declaration by relying on a 1945 law granting the governor emergency powers, rather than a 1976 law that deals specifically with emergency response.
An appeals court sided with Whitmer in a challenge from the legislature last month. Michigan House Speaker Lee Chatfield, a Republican, blasted the ruling. “The Court of Appeals ruled today that as long as it’s the opinion of a sitting governor that there’s an emergency, they can take over complete, unilateral control of the state for as long as he or she decides. No checks on power. No separation of power. This is unconstitutional,” he wrote
The state Supreme Court will hear oral arguments in the case this week. In the meantime, Whitmer has extended her emergency declaration through Oct. 1.
Massachusetts’ high court will also be hearing a challenge to a governor’s emergency powers this week. Businesses and churches are suing Gov. Charlie Baker, a Republican, arguing that he’s exceeded the authority granted to him under a law written in 1950.
But Attorney General Maura Healey, a Democrat, said the governor is well within his authority under the Civil Defense Act. “This pandemic, which has killed 822,000 globally, including more than 8,700 Massachusetts residents statewide, is precisely the kind of civil defense emergency that warrants a coordinated state level response by the governor under the Act,” lawyers from her office wrote.
Another showdown in Wisconsin
Perhaps the most contentious showdown over the scope of governor’s emergency powers has been in Wisconsin, where Republican lawmakers successfully blocked an effort by Democratic Gov. Tony Evers to extend a stay-at-home order this spring.
The conservative majority in the Wisconsin Supreme Court’s 4-3 decision in Wisconsin Legislature v. Palm, et. al.
claimed the case was about “the assertion of power by one unelected official, Andrea Palm,” the head of the Wisconsin Department of Health Services. “This case is not about Governor Tony Evers’ emergency order or the powers of the governor.”
The majority found that Palm did not comply with administrative procedures before issuing a stay-at-home order that closed businesses and limited the size of gatherings.
But the reason Palm issued a separate emergency order was that the governor’s own emergency order was about to expire, and the Republican-led legislature declined to extend it, as required under Wisconsin law. It was also clear that some of the judges in the majority chafed at the restrictions put in place by both orders. “This comprehensive claim to control virtually every aspect of a person’s life is something we normally associate with a prison, not a free society governed by the rule of law,” one judge wrote in a concurring opinion.
Without legal authority to proceed, the governor shied away from tighter restrictions that could keep the spread of the coronavirus in check. In late July, though, Evers issued a new emergency declaration, followed by a statewide mask mandate.
Now, the Wisconsin Institute for Law and Liberty, a conservative public interest law firm, is suing to rescind Evers’ July emergency declaration. Lucas Vebber, an attorney with the group, said the issue is not whether or not Wisconsin should have a mask mandate; it’s whether Evers is subverting the restrictions on emergency declarations.
“This is the same underlying public health emergency,” Vebber said. “In Wisconsin, when the governor has these powers, he is potentially issuing law. It’s not subject to the same legislative process. That’s why he has to take some action [to extend it] within 60 days. I am hopeful that the governor sees that and follows the lawful process.”
In the lawsuit, the Law and Liberty institute said letting Evers’ emergency declaration stand “would allow one person rule by the governor for what could be a virtually unlimited amount of time whenever the capacious and vague statutory definition of a ‘public health emergency’ or ‘disaster’ can be said to be present. State law and our Constitution say otherwise.”
The short duration of the state of emergency, though, could make the whole case moot by the time a court takes it up. Vebber says he hopes courts will still take up the challenge, though, to prevent Evers or other governors from avoiding the time limit on emergencies by simply issuing new declarations.
Burris, the Temple law professor, though, said the Wisconsin Supreme Court’s original decision was a rare rebuke for a governor.
“In a lot of places, the law did not contemplate a long emergency like this, but there is undeniably a real emergency,” he said. Given those circumstances, Burris said, lawmakers and courts can take either a conciliatory approach that allows governors some latitude in interpreting laws or “to be formalist and sticklers and say, ‘It doesn’t matter how many people die or how much chaos is caused, we’re going to hold you to this formalist [reading].”
“That’s what the Wisconsin Supreme Court did in Paul,” he argued. “It was a hyper-technical reading of the law driven by plain and stated libertarian beliefs. Not too many courts in the history of America have done that. People get pragmatic in the face of a killer disease, and they also get pretty cautious about being the ones decide that … freedom is more important than reasonable health measures.”