As the world opens back up, emergency powers reform still matters

June 02, 2021 | By DANIEL DEW
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As the country continues to re-open after more than a year of living under COVID emergency orders, it may be tempting to ignore further calls to restrict executive overreach.

But we must be vigilant in upholding our system of checks and balances before the next national crisis comes our way.

Many will chalk up the year of unilateral dictatorial rule to a once-a-century pandemic. And some people agree with the extensive orders made over the past 15 months. After all, in the beginning we knew very little about the virus, and widespread fear was justified.

But neither of those beliefs is a valid reason to ignore the very real threats to the constitutional guarantee of separation of powers posed by many states’ emergency powers laws and practices.

Before last March, it would have been unfathomable to think that a single person could, with a figurative wave of his or her hand, close schools, shut down businesses, decide which health conditions were worthy of medical treatment, and even make citizens stay home except for government-approved activities.

To keep up with the ever-changing situation, people tuned into press conferences every day to see what the government would allow them to do. No votes were taken. No laws were passed. Just one person making up law on the fly.

Thankfully, it looks like we are mostly on the other side of the pandemic response. But even rules regarding the reopening of states have been mostly arbitrary. And long after the threat of COVID is over, the threat of overreaching emergency orders and power grabs will remain.

Anyone who thinks that government-by-emergency will end with the pandemic isn’t paying attention. State and local governments have declared lots of things “emergencies” that are actually ongoing policy issues like climate change, homelessness, racism, and opioid abuse.

These are serious issues worthy of debate by legislatures, but they are not emergencies.

The actions that governors and local government executives got away with during the pandemic will only embolden them to overstep the limits of their power. Regardless of whether you like a particular governor, no one person should be given all the police powers vested in the state. This is precisely why separation of powers was written into our Constitution and why Pacific Legal Foundation works relentlessly to guard this constitutional protection.

The federal and state constitutions grant lawmaking authority to legislative bodies elected by their constituents. This is an intentional way to ensure that legislation is debated, and laws are made by a consensus of the majority rather than by a single person or a handful of people.

Legislators representing different points of view serve as the voice of the people. Additionally, the U.S. Constitution and most state constitutions require the chief executive to faithfully execute the law. Not make it, change it, change it again with some crony exceptions, and then execute it as he sees fit.

The Bill of Rights gets the most attention for protecting individual liberty, but it is the constitutional structure of separation of powers and checks and balances designed by the Framers that is the most effective means of protecting people from an overreaching government.

Justice Antonin Scalia said, “Every banana republic in the world has a bill of rights. Every president for life has a bill of rights.” When the whole of government power rests with one person without checks and balances, there is no guarantee that any rights will be protected, regardless of what a bill of rights says.

Chances are that if you call your local state legislator, you will be able to speak with him or her and voice your concerns. Good luck doing the same with your governor—that is, unless you come with a huge campaign check in hand in pursuit of your crony exception.

Emergency management laws in most states turn our constitutional form of government on its head. Through these laws, states vest broad authority to governors to act quickly during an emergency so the slow wheels of legislating don’t stand in the way of saving life or property.

But those laws were intended to allow the governor to steady the ship for a short period of time, not route a new course for as long as he wants.

Emergency orders should be limited in duration and require the legislature’s approval if they need to be extended. Each branch of government needs to be restored to its proper role as quickly as possible.

Legislators in states across the country have stepped up to retake their constitutional duties to make law and set policy. At least eight states have reined in governor emergency powers by re-inserting themselves in the process, placing time limits on emergency orders, and requiring legislative approval to extend orders.

Throughout history, we have seen what happens when emergencies are used to give executives the unlimited power to violate separation of powers and unilaterally make laws. The 9/11 attacks offer a perfect example of this. In the aftermath, we lost many freedoms we never got back again.

If we give executives an inch, they have shown that they will indeed take a mile.

We need to ensure that we rein in executives’ use of emergency powers now so that we do not face the same constitutional challenges in any future crisis that may arise.