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Preemption by Executive Order

Although one might hope that during a global pandemic, governments would be united against the common enemy of a deadly virus, the Covid-19 pandemic has ushered in yet another set of state-local conflicts, this time around public health measures such as mask requirements, capacity limitations, and closures. While these conflicts often reflect similar partisan divides as seen in pre-pandemic times, they are unique in that much of the preemptive activity stems not from state legislatures enacting the types of “new preemption” laws discussed above (although that type of preemption has continued during the pandemic as well), but rather from governors issuing executive orders purporting to preempt or suspend preexisting sources of authority (such as home rule or specific delegations of power found in many state public health codes and emergency management laws) that would otherwise allow local governments to engage in the actions being preempted.

Although pandemic-related state-local conflicts have received extensive media attention, the focus has tended to center around the (often partisan) policy debate over whether a particular local action that is being preempted is an appropriate public health response to the pandemic or a governmental overreach. Far less attention has been given to the underlying legal question of whether governors issuing executive orders that purport to preempt or suspend local governmental authority actually themselves have the legal authority to do so.

Answering this question requires analyzing the specific source of authority that a governor has relied on in issuing an executive order. During the pandemic, most executive orders purporting to suspend or preempt local authority have been issued by governors citing their authority under state emergency management laws. These laws vary in their specifics, but most state emergency management laws grant the governor certain powers, such as the authority to declare a disaster, to seek funding to respond to the disaster, to control ingress and egress from a disaster area, and provide that duly authorized executive orders issued by a governor pursuant to a state emergency management act have the force of law.

The rationale for emergency management laws granting the governor these extraordinary powers is shaped by the practical need for quick decision-making in the wake of a disaster and by the institutional design of state governments (with many state legislatures part-time bodies which may not be in session for months after a disaster). However, no state legislature has granted the governor unlimited authority during a disaster: the governor can only take actions to the extent authorized by the state’s emergency management legislation. Thus, whether a governor has the authority to preempt local laws by executive order depends on the specific statutory authority in a state’s emergency management law, which may not grant the governor the expansive preemptive powers claimed.

For example, in July 2021, the Texas governor issued executive order GA-38 prohibiting local mask mandates. In issuing this order, the governor relied on a specific provision of the state’s emergency management law, Section 418.016 of the Texas Disaster Act (TDA), which provides that the governor can “suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance” would hinder the response to a disaster in any way. The governor has contended that this provision authorizes him to suspend the legal powers that the Legislature has specifically granted to local governments in the TDA itself, as well as other pre-existing sources of authority local governments have been granted by the Legislature to protect public health. However, as several local governments have argued in their ongoing litigation against the governor, the statutory language, legislative history, and past exercises of the gubernatorial authority under the TDA all indicate that the power granted to the governor by the Legislature in Section 418.016 is the power to suspend otherwise applicable state regulations and rules—such as a state licensing requirement or regulatory deadline imposed by a state agency—if compliance would hinder the response to a natural disaster, not carte blanche to suspend local laws because the governor disagrees with them.

While there is a strong argument that the preemption by executive order attempted by the governor of Texas in GA-38 is ultra vires, preemption by executive order in other states may or may not be valid, depending on the particular language of the source of authority a governor relies on. For example, New York law authorizes the governor to suspend “specific provisions of any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency,” under statutorily specified circumstances, if compliance would hinder the response to the disaster, thereby seemingly explicitly authorizing preemption of local laws by executive order.

Perhaps because executive orders have not historically been used as a preemptive mechanism, legal analysis on the subject is thin. But with the upsurge in preemption by executive order during the Covid-19 pandemic, the issue is ripe for greater scholarly attention (as evidenced by the fact that Professors Daniel Rodriguez, David Gartner, and Richard Schragger and Dilini Lankachandra have each highlighted the issue as one that calls for further attention in their recent scholarship). Not only is there a need for clearer analysis of the scope of gubernatorial authority to preempt local governments under state emergency management acts pursuant to suspension provisions in those laws, but there is also a broader question to be addressed, since governors in most states can issue executive orders pursuant to other sources of power (such as state constitutions or other specific state legislation), and thus could potentially use that to exercise preemptive authority. And since preemption by executive order not only implicates questions of vertical power in terms of state-local relations, but also questions of horizontal power in terms of separation of powers and the non-delegation doctrine, the issue presents numerous avenues for future inquiry.


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