Defending the separation of powers is a nonpartisan issue… or at least it should be

February 22, 2022 | By DANIEL DEW
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Virginia recently passed a bipartisan law that will give parents the right to choose whether their children wear masks in schools.

School mask requirements have been a hotly debated issue across the country since schools reopened after the initial COVID pandemic lockdowns. Whether you are pro-mask, anti-mask, or somewhere in between, we should all appreciate that, unlike initial emergency orders imposing mask mandates, this policy change was made by the constitutionally designated policymaking branch of government—the legislature.

For nearly two years, emergency orders have been in place dictating almost every aspect of our lives—which businesses can remain open, which types of medical procedures you can receive, whether schools can remain open, just to name a few.

But those policies were never voted on by the legislature. Instead, a single person generally made, suspended, and amended laws at his or her pleasure under the guise of “emergency powers.”

Before the pandemic, emergency powers weren’t a left or right political issue. But as state legislatures debate bills to rein in governor emergency powers, those debates have become referendums on current officeholders and are all too partisan.

Structural safeguards to the constitutional separation of powers shouldn’t be politicized.

Across the political and philosophical spectrum, groups have warned of the dangers of broad emergency powers.

After 9/11, the ACLU railed against model legislation that would give governors sweeping health emergency powers. The ACLU rightfully warned that such powers “should never go unchecked.”

“The lack of checks and balances could have serious consequences for individuals’ freedom, privacy, and equality. The Act lets a governor declare a state of emergency unilaterally and without judicial oversight, fails to provide modern due process procedures for quarantine and other emergency powers, it lacks adequate compensation for seizure of assets, and contains no checks on the power to order forced treatment and vaccination.”

The Brennan Center for Justice has also been a progressive voice of warning against overly broad emergency powers at the federal level.

The Brennan Center has written:

“Many [emergency powers] are measured and sensible, but others seem like the stuff of authoritarian regimes: giving the president the power to take over domestic communications, seize Americans’ bank accounts, and deploy U.S. troops to any foreign country. Given how broad these powers are, it is critical to have adequate safeguards in place to prevent abuse.”

This broad support for checks and balances, even in times of emergency, shouldn’t be surprising.

Without safeguards, one person can declare an emergency for as long as he or she wants and, during that time, can rule without interference from the courts or legislature. That is a future that principled people on neither the political left nor the right want.

Supreme Court Justice Robert Jackson famously and prophetically wrote, “emergency powers [ ] tend to kindle emergencies.”

Observing the way governors have so efficiently imposed their will on their constituents during the pandemic, a chorus of calls for emergency declarations has erupted for diverse issues ranging from climate change and homelessness to gun violence and drug abuse. And while these are important issues, it would be a complete abuse of authority to address them through emergency order rather than going through the constitutional lawmaking process.

If a governor were to heed those calls and declare an emergency—like Gov. Cuomo did last year for gun violence in New York—there is limited recourse by the other branches of government to question whether something is an actual emergency, or to curb emergency orders.

Pundits across the political spectrum, and the public at large, have expressed increasing frustration that policymakers have failed to address and pass meaningful legislation on the issues of the day. That frustration may lead some to support unilateral executive action when that one executive agrees with them. But when the opposing party or leader takes control, which eventually will happen, they should be grateful that one person can’t legislate by fiat.

State legislatures should heed the warnings of groups across the political spectrum by placing meaningful checks and balances on the exercise of emergency powers.

In the meantime, cheers to Virginia’s Republican-controlled House, its Democratic-controlled Senate, and Governor Youngkin for the return of lawmaking through the constitutional process.