Most states give their governors extraordinary powers in an emergency to protect the public’s health and safety when there is no time for legislative action. These emergency powers may be crucial in uncertain times, including pandemics, but their use must be time-limited and respectful of constitutional rights.

Unlimited, dictatorial rule cannot be allowed to continue indefinitely.

PLF is working with legislatures and in courtrooms across the country to place safeguards on emergency powers and restore constitutional government.

Home equity theft

Model Legislation

PLF’s model bill, the Emergency Power Limitation Act, provides for three main limits on the use of emergency powers. 1) Emergency orders will expire after a short period of time unless the state legislature extends them, 2) Emergency orders must be narrowly tailored to protect the public’s health and safety, rather than arbitrary and logically inconsistent, 3) Courts must provide expedited review of disputed orders that restrict constitutional rights.

Download Model Legislation

COVID-19 restrictions were imposed unilaterally by a state or local executive.

316 million Americans across 42 states lived under stay-at-home orders in response to COVID-19. Unemployment has skyrocketed because of business closures, with unemployment highest in states with more severe shutdown orders. Travel is restricted. Nearly every aspect of life has changed.

Although emergencies may require swift, initial responses from an executive official, time allows legislators to fulfill their constitutional duty as the people’s representatives who make law, and for courts to constrain the worst abuses of power.

It’s time for legislators and judges to reclaim their proper roles.

The separation of powers framework in our state and federal constitutions is the most important protection of individual liberty. Constitutional checks and balances should not be tossed aside, even in an emergency.

Principled reforms that reinforce separation of powers should include requirements that emergency orders:

  • Expire in a limited amount of time, unless ratified by the legislature;
  • Be narrowly tailored for compelling health and safety reasons, and be limited in duration, applicability, and scope;
  • Be subject to expedited judicial review, particularly when constitutional rights are at stake;
  • Signed by the governor for statewide orders that infringe constitutional rights;
  • Sunset quickly if the legislature is not in session or called into session, followed by a limited period for the legislature to ratify the order;
  • Cannot be reissued by governors if the orders that have expired or the legislature rejected.

State Emergency Powers Statutes

Read more on PLF’s Recommendations for Principled Reform

Cases

November 23, 2020

Say 'no thanks' to Thanksgiving mandates

Just when you thought 2020 couldn’t get any stranger, it’s likely that your governor has invited himself or herself to your Thanksgiving dinner.

March 05, 2021

Deseret News: Reining in executive power is in Utah’s best interest

Utah is consistently rated as one of the freest states in the nation. But even in the Beehive State, the government response to COVID-19 has been a harsh reminder how quickly that can change if there are no limits on the executive. Over the past year the governor and local officials ordered businesses to close ...

February 18, 2021

Governor Andrew Cuomo's emergency powers scandal

Although Governor Andrew Cuomo's intentionally false reporting on COVID deaths in nursing homes last year is shameful by itself, it also highlights a larger problem with emergency orders issued by governors alone without other checks. While there are now over a dozen New York State senators who want to limit the governor's emergency power, the ...

January 07, 2021

Can they really do that? What are the limits of government during COVID-19?

Since the COVID-19 pandemic hit the U.S. in March, state governors have imposed restrictions that would have been unthinkable at this time last year. These drastic actions have left many wondering about the limits of government officials' power—and whether that power changes during times like these. The simple answer is that—there's no simple a ...

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