Arizona Capitol Times: It’s past time to rein in governor’s emergency powers

April 08, 2021 | By DILLON CHEPP
originalism vs. textualism

In late January 2020, Arizona logged its first recorded Covid infection. Just over six weeks later, the pandemic had spread so widely that Gov. Doug Ducey declared a statewide emergency.

As we’ve passed the anniversary of that emergency declaration, it’s worth reflecting on what we’ve learned from the extraordinary events of the last year. One key lesson is that government leaders absolutely need to be empowered to respond to emergencies – and just as importantly, those emergency powers must be limited.

That’s why Arizonans should welcome the effort by state legislators to curb the governor’s emergency powers. One such legislative proposal, Senate Bill 1084, would go a long way toward restoring balance and accountability to state government.

Ducey’s emergency declaration was defensible last spring, when little was understood about the virus, its rate of infection or its lethality. Given the uncertainty, extraordinary actions were justified to limit the spread of the virus and to ensure that health care facilities could meet the challenge. Most of us were willing to give the governor the benefit of the doubt.

But emergencies are, by their very nature, fleeting. What we have now is a situation that is serious but manageable. That means it’s time to end the state of emergency.

Governors are given special emergency powers because crisis response requires quick and decisive action. Representative democracy, for all its virtues, moves slowly. The Legislature, as the most democratic branch, reflects this norm, as it is designed to deliberate, assess facts and debate ideas before acting.

Under normal circumstance, that’s exactly how public institutions should perform. But when delay could mean death, we empower leaders to act swiftly, even if it means violating democratic norms for a limited time.

However, once the initial emergency situation passes, so too does the rationale for vesting one person with exorbitant unilateral authority. If uncertainty about the right response persists, that’s even more reason not to leave it to one person.

To his credit, Governor Ducey wielded his emergency powers in a relatively targeted and responsible manner compared to many of his counterparts in other states. But even if you thought his decisions were flawless, that does not validate unilateral decision-making for a full year (and counting). A future governor may wield such powers in ways that are reckless and irresponsible.

The potential for abuse is why we should get serious about reforming emergency powers. State policy should not be subject to the whims of one person except in the rarest of circumstances, and then only for a limited time. SB1084 addresses this problem by capping an emergency order at 90 days, unless extended by the Legislature, and prohibiting the governor from issuing a new “substantially similar” emergency order if the original one expires.

To be clear, SB1084 does not affect the governor’s ability to use emergency powers to act quickly and decisively in the first three weeks of an emergency. It merely restores the proper balance of power between the branches once the initial emergency has subsided.

Permanent unilateral rule poses a real threat to liberty because it lacks transparency, accountability, and meaningful legislative oversight. Legal scholar Elizabeth Goitien explained in congressional testimony in 2019 that “permanent emergencies increase the likelihood that the declaration will be used for purposes unrelated to the original triggering emergency.” For instance, emergency declarations involving riots have subsequently been used to suppress the First and Fourth Amendment rights of peaceful protestors. In Kentucky, an investigative report from the State Treasurer’s Office alleged the governor was wielding Covid-related emergency powers to selectively target houses of worship.

Disdain for permanent emergencies is not a partisan issue. Entities such as The New York Times editorial board, the Brennan Center for Justice at NYU School of Law, Public Citizen (a progressive advocacy group), and Republicans for the Rule of Law have decried the concept. The same is true for individuals across the ideological spectrum, ranging from Democratic chairman of the powerful Judiciary Committee, Rep. Jerrold Nadler (“[A]n emergency cannot continue forever,”) to conservative Justice Samuel Alito (“[A] public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists,”) to independent legal scholars.

If governors continuously rule by emergency orders, then the power of the state Legislature is severely reduced and its status as a co-equal branch of government called into question. Legislation like SB1084 ensures the proper balance of power between the branches while protecting the governor’s ability to respond decisively to a true emergency. Lawmakers should move forward with this sensible legislation, and then get back to working with the governor to address the ongoing challenge of the Covid pandemic through the established legislative process.

This op-ed was originally published by Arizona Capitol Times on April 7, 2021.