“So this is how liberty dies? With thunderous applause.”
These were the parting words of Senator Padmé Amidala to the Galactic Senate in Star Wars Episode III: Revenge of the Sith, as she observed her colleagues gleefully cheering on the dissolution of the Republic on its 1,000th year, only to be reborn as the Empire.
Sitting atop this new galactic powerhouse was Sheev Palpatine, the ambitious senator turned Chancellor and then Emperor.
Three years prior, then-Chancellor Palpatine was given broad executive authority to deal with a perceived crisis in the rise of Confederacy of Independent Systems (CIS), a secessionist movement that stood poised to split the known galaxy in two.
Jar Jar Binks, the junior Senator from Naboo and arguably the most hated character in the entire Star Wars universe, put forward the motion on the floor of the Senate to pass the Emergency Powers Act. Given that lives were at stake if inaction continued, he did so thinking this was the definition of political courage.
The amendment to the Republic’s constitution would empower Palpatine to act decisively and table further debate on how the Republic should respond to the threat. Unknown to Jar Jar and the rest of the Senate, the emergency in question would never come to an end.
A galaxy not so far, far away
What was a fictional issue in a galaxy far, far away has become a reality in our own republic, as many governors have decided this pandemic has given them open-ended authority to do whatever they deem necessary to mitigate the spread of the virus.
But as we are about to enter the 12th month of this pandemic, many are worried that, much like the emergency in Star Wars, this crisis has no end in sight.
Across the country, we’ve faced some tough choices about the appropriate role of government—federal, state, and local—in responding to the greatest global health crisis in a century.
The federal government was rightly deemed an inefficient decision-maker for how localities should respond to COVID, in matters such as school closures and business shutdowns, so governors and mayors stepped in.
The sense of emergency in March 2020 was palpable. As such, state legislatures and city councils stood aside to allow state and local executives to exercise their emergency powers.
Emergency powers exist for the instances when there are immediate and irreversible threats to our life, liberty, or property. But when these powers are left unchecked—and open-ended—separation of powers ceases to exist, and our republic becomes vulnerable to executive overreach.
Some lawmakers have had enough of this blatant disregard for the separation of powers guaranteed to us in our Constitution.
New York State Representative Alessandra Biaggi became the second Democrat state senator this month to call for Governor Andrew Cuomo’s emergency powers to be rescinded. Rep. Biaggi told the NY state press:
“Just to put this into perspective as to why we need to limit and end the governor’s outsize power, his broad emergency power, is because in just the first six months of the governor’s expanded emergency powers, he used that power to issue 65 executive orders, and to suspend more than 250 laws.”
New Mexico Governor Michelle Lujan Grisham is facing the same pressure to return constitutional governance to normalcy.
Beyond the power to close down commerce, quarantine individuals, and restrict travel, Gov. Grisham has been able to do everything unilaterally, from managing healthcare facilities to exercising oversight of burials and cremations during the pandemic. Many legislators have grown weary, looking back on the limitless nature of the governor’s emergency authority with regret.
“When emergencies go beyond a fairly short period of time, I believe strongly the Legislature has a role to play in crafting public policy,” said New Mexico State Representative Greg Nibert.
Rep. Nibert isn’t alone in his concern. That’s why several bills are in motion in statehouses across the country to put safeguards on executive emergency powers. PLF has been at the forefront offering solutions for state legislators.
Just weeks ago, Kentucky passed Senate Bill 1, legislation to place time limits on the governor’s emergency orders and prohibit the governor from reissuing orders that are substantially similar to orders rejected by the legislature or that expired. After the legislature overturned the governor’s veto, Kentucky Governor Andy Beshear sued the legislature to keep the status quo.
Gov. Beshear argues that SB 1 is unconstitutional because it infringes on the separation of powers within the state. Gov. Beshear has expressed concerns that Kentuckians would “los[e] [their] will to do the right thing too early[,]” implying that he would unilaterally force the state to comply with his opinion of the correct course for as long as he wants, regardless of what Kentuckians and their representatives think should be done.
Protect separation of powers
Separation of powers, and our system of checks and balances, ensures that no branch of government can tread on another’s territory, becoming more powerful than the other two.
As Pacific Legal Foundation’s Daniel Dew wrote:
“If an executive agency does something the legislature does not like, it can change the law or pull funding. If the legislature passes an unconstitutional law, the judiciary can overturn it. If the judiciary interprets a law in a way the legislature does not like, legislators can rewrite the law.”
But when the executive can declare an open-ended state of emergency, and then sue the legislature for declaring their actions unconstitutional, as is the case in Kentucky, we have a serious problem on our hands.
In the Star Wars universe, what the Republic lacked in the Emergency Powers Act were guardrails. Safeguards besides the benevolence of the executive were needed. Our own republic needs the same:
- Emergency orders should be narrowly tailored to ensure that governors are not given a blank check to do as they please. By limiting emergency orders in their scope, duration, and applicability, it will be harder for government executives to discriminate against certain individuals, organizations, businesses, or industries.
- Emergency orders should also be subject to expedited judicial review. Usually getting your day in court takes time. But when your livelihood is at stake and every day counts, it’s important that people can seek and obtain relief as quickly as practicably possible.
- Statewide emergency orders should be issued by the governor rather than an unelected bureaucrat in his or her administration.
No matter what the crisis in question may be, no state of emergency should be open-ended. Emergency orders should have an expiration date—lasting only for a reasonable amount of time unless ratified by the state legislature. And to ensure the legislature is involved as quickly as possible, the law should give a carrot to the governor to incentivize him or her to call the legislature into session by extending the period of time the governor’s order can last if the legislature is called into an emergency session.
With the pandemic resulting in the need to socially distance, legislators should not miss the opportunity to vote on legislation if they are uncomfortable attending sessions in person. By allowing remote participation, state representatives can still debate and vote on emergency powers, as is their duty. This would also come in handy if another type of emergency made travel or gathering unreasonable.
But all these reforms would be for naught if the governor can simply re-issue the same orders again and again as they are rejected or expire. If legislators reject a governor’s emergency orders, or if they have expired, governors should be prohibited from reissuing those same or substantially similar orders.
It’s painful to watch state legislatures and city councils around the country be caught flat footed by their executives hanging onto emergency power for this long, because just like the plot of a Hollywood film, it is so predictable.
The COVID-19 pandemic caught America by surprise. No one is surprised anymore, and vaccines are being distributed. State legislatures need to act quickly to get their power back from governors who, like Palpatine, always seem to say, “I love democracy. I love the Republic. Once this crisis has abated, I will lay down the powers you have given me!”
But how often are leaders willing to give up their powers once they receive them?
There will always be emergencies. There will always be crises. But there are no guarantees we will always be a nation of laws if we continue to accept emergencies as incompatible with our Constitution.
Stephen Kent is the curator of Politicize Me, host of the Beltway Banthas Podcast, and forthcoming author of ‘How The Force Can Fix The World’ (Hachette-Center Street). You can follow him on Twitter @Stephen_Kent89.