Since the beginning of the COVID-19 pandemic almost a year ago, governors and mayors have been governing unilaterally under the guise of emergency powers, and state legislatures and courts have delayed too long in reasserting their constitutional roles. Whether you believe that the government has done too much or too little to deal with COVID-19, what has happened over the past year sets a terrible precedent: that an individual governor or mayor can wield unfettered power indefinitely simply by declaring an emergency.
As a result, the framework of government that provides the greatest protection of liberty was completely trampled under the guise of emergency pandemic response. It is time to rein in governors’ emergency powers by restoring the time-tested model of checks and balances across the three branches of government.
The Bill of Rights gets the most attention for protecting individual liberty, but it is the constitutional framework of government that the Framers of the Constitution envisioned as the most effective means of protecting people from an overreaching government. Justice Antonin Scalia said, “Every banana republic in the world has a bill of rights. Every president for life has a bill of rights.” When the whole of government power rests with one person without checks and balances, there is no guarantee that any rights will be protected, regardless of what a bill of rights says.
Our state and federal governments are structured such that each branch of government — the executive, the legislative and the judicial — can do no more than what it is delegated by its constitution. Each branch checks the power of the others. 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.
The Framers understood that the lawmaking power was the “most dangerous” threat to liberty and entrusted it exclusively to a multi-member legislature for many reasons, including because it would ensure public debate, encourage compromise between factions and lessen the risk of individual bias.
There are times when the government must move quickly to prevent irreversible harm to life or property, and thus, state legislatures have given their governors extra authorities to be used in times of emergency. For example, we are accustomed to emergency declarations and orders passed in response to natural disasters. Natural disasters are the perfect candidate for emergency orders: they arise quickly, and immediate action may need to be taken before the legislature can reasonably respond.
As COVID-19 began to spread in the U.S. last year, little was known about the virus’s transmissibility, its contagiousness, or its lethality. During the initial weeks of the emerging pandemic, governors exercised their emergency powers to blunt the impact of the disease using the limited information available to them. But there is no reason unilateral lawmaking — which is what emergency orders are — should continue indefinitely when the legislatures are in sessions or could be called back to deliberate on whether fundamental restrictions on liberty should continue and under what conditions.
For nine months and counting, governors and mayors across the country, to varying degrees, have relied on emergency powers to unilaterally change and create laws that have affected almost every aspect of our lives. Because of these orders, businesses closed (many permanently), jobs were lost, health care was denied because it was deemed “non-emergency,” religious services were shut down, and family holiday celebrations were banned, among other changes.
The impact of such a one-person rule on individual liberty grew so concerning, it became the focus of “A Delicate Balance: Liberty and Security in a National Crises,” the first virtual seminar in a month-long series hosted by Pacific Legal Foundation.
There is no doubt that COVID-19 is a serious problem that the government cannot ignore. But there has been ample time for legislatures to respond, and for courts to scrutinize those initial orders to ensure they do not unnecessarily or arbitrarily infringe upon citizens’ rights.
If governors go unchallenged, they are likely to be emboldened to act unilaterally to combat other declared emergencies, such as the opioid epidemic, homelessness, or racism. No doubt, these are serious issues that the government may address. But are we ready to sacrifice our constitutional safeguards and trust one person to make changes in all policy matters that those complex issues touch?
As states across the country begin their 2021 legislative sessions, whether they feel their governor has acted appropriately or not, state legislators need to place safeguards on the unfettered emergency power to ensure the legislature and judiciary play their roles in protecting individual liberty. That will be a welcome first step toward restoring balance and accountability to the policy-making process.
This op-ed was originally published by The Hill on January 11, 2021.