New York Times confuses legislative check on unilateral power with partisan warfare

March 16, 2021 | By DANIEL DEW

Although pandemics and crises are common throughout history, the “unprecedented” factor of the past year has been authoritarian restrictions on daily life and gubernatorial abuses of power.

Consequently, it’s perplexing that unilateral restrictions on dining, walking outside, school closures, and family gatherings pass as reasonable, but the urge to restrict that power does not.

This is evident in a recent New York Times article, “State Lawmakers Defy Governors in a Covid-Era Battle for Power,” where national correspondent Trip Gabriel characterizes proposed legislation to limit the emergency powers of state governors as “partisan warfare.”

Gabriel states:

“Republicans are seeking to harness the widespread fatigue of many Americans toward closed schools, limits on gatherings and mask mandates as a political cudgel to wield against Democrats.”

This characterization presents itself as a political power struggle, but the legislative branch restricting the power of the executive is a classic example of checks and balances—a core pillar of America’s system of government.

It is the legislature’s duty to make the laws that govern the people. It is a mistake to label any legislators’ effort to enact safeguards on emergency powers as “defiance” of a current governor.

The pandemic exposed flaws in many states’ laws that allow governors to rule unilaterally for a year or longer. That flaw applies to invocations of emergency powers for any reason. While the government may need nimble action at the onset of a crisis, chronic problems cry out for legislative input.

This is a core separation of powers dispute in which a legislative majority’s deference to a governor of the same party is more remarkable than the converse. Moreover, bipartisan votes in some statehouses show that legislative action isn’t primarily motivated by politics or the current governor’s rebuke.

Whether you approve of the unilateral orders this past year or not, state laws that allow sweeping and indefinite rule by governors provide no incentive for legislative involvement. Any action by state legislatures to take responsibility for decision-making during an extended crisis should be applauded.

Pacific Legal Foundation has been working with individuals to ensure that the guarantee to separation of powers remains in tact.