The Washington Post: Virginia should limit emergency orders with a balance of powers

Strong leadership is necessary in times of crisis. Swift and decisive action can save lives and protect the public. But leaders cannot avoid constitutional processes and political accountability just by declaring an emergency, even if most citizens agree an emergency exists.

With Virginia legislators back in Richmond for a special session, it is time for the General Assembly to review the process by which the governor can keep the commonwealth under a state of emergency and avoid the lawmaking process.

Virginia’s governor, Ralph Northam (D), just like every other governor, issued several executive orders and emergency orders as the outbreak of the novel coronavirus began in March. We know more now about the coronavirus than we did then. In March, our leaders did not have good information about the potential harms — both from the virus and the government’s response to it. It was unquestionably an emergency in which immediate action was needed to blunt potential harm.

But here we are in September — which feels much longer than six months later — and many of the governor’s orders are still in effect. No matter where you stand on the pressing questions about the coronavirus — mask or no mask; in-person schooling or virtual classrooms — there should be little question about the commonwealth’s ability to keep its citizens in a perpetual state of emergency.

Emergency power in the hands of a governor is allowed for critical snap decisions. This is especially important in states such as Virginia, where the legislature meets for only a short session each year, and it would be challenging to reconvene those representatives in time to meet a pressing need. Therefore, it is entirely appropriate for a governor to be vested with certain emergency powers.

But the longer an emergency declaration is in place, the less justification there is for unilateral action in the government’s response. With a governor who is no longer accountable by facing an election, Virginians have no political recourse for his long-standing emergency actions if there is no review by the legislature. The governor is effectively making laws without the legislative process. The need for a balance of government power requires us to reconsider this process as being weighted too heavily in favor of the executive.

The General Assembly should debate how far-reaching — in both time and power — the governor’s emergency powers should be. We have three branches of government, and each should play a role in the state’s response to emergencies.

The legislature should either ratify or revoke emergency orders. Moreover, the law that authorizes such emergency orders should be revised so that the most intrusive orders expire in a short period without General Assembly action. The legislature is the most democratic body in state government, and the most responsive to the will of the people. As such, it is the least likely to allow abuses of emergency power. If the legislature is not in session, the governor should be required to call it into session for emergency orders to continue.

The judiciary should also be engaged to review emergency orders that infringe upon constitutional rights to ensure the orders serve a compelling public health or safety purpose. Judges must also consider whether orders are narrowly tailored or are arbitrary — and whether they treat similarly situated people differently.

With these reforms in place, it is entirely possible nothing would have changed for Virginians. The legislature may have ratified every one of the governor’s emergency orders, albeit with modifications or sunset provisions. Either way, the General Assembly should share the responsibility for what are essentially emergency laws. And requiring legislative action to continue emergency orders increases the odds the governor will more carefully consider the wisdom and implications when devising future orders.

Legislation before the state House of Delegates and the state Senate invokes these first principles by recognizing the legislature indeed has a role in determining if suspending rights is justified during an emergency, and for how long. Lawmakers should use this special session to consider and vote on these bills.

This is an issue that carries no partisan label, only the spirit that, in times of crisis, we cannot throw away our rights with a mere stroke of the governor’s pen.

This op-ed was originally published by The Washington Post on September 11, 2020.