Carolina Journal: Emergency powers reforms are a big win for North Carolinians

Last week, the North Carolina General Assembly passed, and Gov. Roy Cooper signed, a budget bill that was striking for several reasons, including amendments to the Emergency Management Act (EMA) that will boost protections for North Carolinians’ constitutional rights. The new reforms put an automatic end date onto any declaration of emergency.

When the COVID-19 pandemic took hold in the United States nearly two years ago, Cooper declared a state of emergency under the EMA, assuming unilateral power to indefinitely regulate individuals and businesses. His arbitrary orders nearly bankrupted business owners like Crystal Waldron.

For nearly a year, Crystal’s bar, Club 519, sat empty while her direct competitors were allowed to serve drinks indoors to customers at their bars inside of restaurants, breweries, wineries, distilleries — with no end in sight. The vast majority of bars in the state were open for over nine months before Waldron and Club 519 had their day in court. Shortly after her hearing in February 2021, Cooper lifted the restrictions on private bars’ indoor operations, eleven months after they were forced closed.

Stories like Crystals show why the reforms passed this week were needed. The North Carolina Constitution’s Declaration of Rights guarantees the “legislative, executive, and supreme judicial powers […] shall be forever separate and distinct from each other.” North Carolina’s highest court explained this promise “preserves individual liberty by safeguarding against the tyranny that may arise from the accumulation of power in one person or one body.”

It’s why Pacific Legal Foundation represented Crystal in her fight for her right to earn an honest living free from unilateral, unending limits on running her business.

The reforms to the EMA will prevent the governor from taking unilateral executive action to declare a state-wide emergency and exercise legislative powers for longer than 30 days, or for 60 days with the consent of a majority of the Council of State. Under the new EMA, the state of emergency will end after 30 days of Gubernatorial unilateral action, or 60 days after a declaration with concurrence from the Council of State, “unless the General Assembly extends the declaration of emergency by an enactment of a general law.” Unfortunately, these reforms will not be effective until January 1, 2023, and Cooper has yet to declare an end to the state of emergency he declared in March 2020, over 20 months ago.

Even with its delayed effective date, the EMA reforms are a big win for North Carolinians. The pandemic exposed flaws in emergency management laws across the country that could be exploited by future governors. Some have called for governors to use their emergency powers to deal with other serious issues like climate change, homelessness, gun violence, and a host of other public policy concerns. While the government may appropriately address some of these issues, it should be done through the constitutionally required legislative process — not by the edict of a single person.

Significantly, the amended EMA contains provisions to prevent the governor from implementing a “substantially similar declaration of emergency arising from the same events that formed the basis to issue the initial declaration of emergency that was not extended.” Although many states already had time limits on gubernatorial emergency orders, some governors during the pandemic simply reissued the same orders repeatedly to circumvent the time restrictions. With its anti-circumvention provision, North Carolina is following a national trend in emergency powers reforms from the last year.

These Emergency Management Act reforms go a long way to ensure North Carolinians will have constitutional government even in times of emergency and should be applauded. But there is still work to be done and as they say, “eternal vigilance is the price of liberty.” The new reforms will not take effect until 2023, and Cooper’s state of emergency remains in effect after 20 months. Crystal Waldron and Club 519’s challenge to the EMA in effect until 2023 is still pending and awaiting a three-judge panel assignment.

This op-ed was originally published by Carolina Journal on November 26, 2021.