The Legislatures Strike Back: The Pandemic and Balances of Power
Updated: Jan 19, 2022
We are delighted to share this post from a former Virginia legislative leader, David J. Toscano. This is the latest in our Field Dispatches series
In her recent SLogLaw post “Harrisburg COVID-19 Response Is No Model,” Meryl Chertoff provides a great explanation of Pennsylvania's response to the pandemic. Except for the use of a constitutional amendment pushed by Republicans in the Keystone state to constrain a Democratic governor, the dynamic is similar to what is occurring in most other states, even those where one party enjoys the so-called trifecta of controlling both bodies of the legislature and the governorship.
When asked about the proper federal response to the pandemic, President Trump remarked “I would leave it to the governors.” And, apart from Operation Warp Speed, that is what happened. State constitutions explicitly confer extensive powers upon governors to act in times of emergency, and they were not shy about using them. Washington state Gov. Inslee was one of the first to seize the mantle of executive power by proclaiming a state of emergency on February 29, and the legislature said little. Republican governors DeWine of Ohio and Hogan of Maryland followed closely thereafter. In my state of Virginia, Democratic Gov. Ralph Northam, himself a physician, declared a state of emergency in March, 2020, just as the legislature was adjourning for the year, that remained in effect for 15 months. This pattern would repeat in many other states where governors would announce new measures that would remain in place for months without much if any legislative input. By the first of April 2020, forty-seven states had issued executive orders closing non-essential businesses, and, by month’s end, all fifty governors had declared states of emergency. State laws differ dramatically in the length of time emergency orders can operate, as well as if, and under what conditions, the legislature can terminate them.
Between the politicization of pandemic responses, the push of a Republican base for which mask mandates became signage of political preferences, and the genuine concern of some legislators about appropriate checks and balances between the legislative and executive branches, it was predictable that resistance would emerge to the proliferation of the gubernatorial orders. But the politics of the various approaches would differ depending on party control of the legislature and governorship. The strongest opposition to the executive orders emerged in states where the legislature was controlled by Republicans, even if the governorship was held by a member of the same party. In Idaho, state lawmakers, bristling over Gov. Brad Little’s numerous emergency orders, passed measures to curtail them, only to have them vetoed. Eventually, lawmakers were able compel to the governor to sign a measure requiring the legislature to approve emergency orders or they would expire after 90 days. Contentiousness reigned in Indiana as Republican majorities in the Indiana state legislature limited Republican Gov. Eric Holcomb’s powers during the pandemic. Holcomb sued, and in a development extremely unusual in states with one-party rule, the state’s Republican Attorney General chose to side with the legislature.
In states with Democratic governors and Republican-controlled legislatures, the controversies were more dramatic. Kentucky, North Carolina, Michigan, and Wisconsin each saw the weakening of the governor’s emergency powers and, as Chertoff explains, Pennsylvania produced the most consequential result of all—a constitutional amendment that will be very difficult to change.
By contrast, efforts to alter executive power were less evident in states where Democrats controlled the governorship and both bodies of the legislature. In Connecticut, Gov. Ned Lamont’s powers were not seriously challenged and while Gov. Newsom in California had significant political problems, efforts to modify his emergency powers gained little traction. In Illinois, a series of executive orders by Gov. Pritzker has continued the state of emergency for 22 months.
Virginia, the state where I served in the House of Delegates for 14 years, is unusual because of its recent changes in political control. In 2020, after twenty years where the GOP controlled one or both legislative bodies, and less than three months before the COVID emergency, the Commonwealth became a Democratic trifecta state. State law provides Virginia’s governor extensive powers to declare emergencies. Unlike many states, the Governor not only has the power to declare the emergency, but to also declare its end. During Ralph Northam’s term, many COVID-related executive orders were promulgated, and legislators typically became aware of them only as they were announced to the public. The emergency was declared just as the legislature was adjourning, so initial opposition focused on the courts. Citizens who engaged in their effort two Republican state senators were unsuccessful in a lawsuit challenging Northam’s authority to enforce the closure of certain businesses. The state supreme court then dismissed a similar action that argued the orders exceeded his executive authority. When the 2021 session convened, several Republican legislators proposed a resolution to amend the state Constitution to prevent governors from maintaining emergency orders for more than 45 days without legislative concurrence, but Democrats did not permit a vote on the measure. Now, with Republicans resuming control of the House and a new Governor from the same party, the dynamic has changed. Several measures have already been introduced. While any Republican proposals will require the imprimatur of Governor Youngkin to pass, legislators enjoy the advantage that the new chief executive has never employed his emergency powers and does not risk political capital in embracing restrictions.
State legislatures across the country convene for new sessions in early 2022 as omicron cases are exploding. Governors in states such as Maryland, Delaware, and Kansas have just issued new emergency orders, and more are likely to follow. At the same time, expect introduction and passage of more laws to reassert legislative prerogatives. The measures will likely be similar to those passed in Kansas, which already requires a degree of legislative consultation during an emergency, and New York, where lawmakers can explicitly overrule emergency orders during states of emergency. In this process, there is risk of legislative overreach, where sound measures to check the power of the executive will be overwhelmed by a storm of hyper partisanship leading to results that make future emergencies most difficult to address. For example, merely dictating a “hard stop” to emergency orders without opportunities for their extension may constrain governors from actions necessary to protect the public.
In times of emergency, citizens are often willing to sacrifice a degree of democratic process in favor of centralized responses to protect lives and property, even if it temporarily involves the suspension of laws or regulations. Moreover, expecting part time legislatures to initiate a quick response to an emergency would create turmoil and unacceptable delay that could threaten lives and property. Few question the need for the executive to intervene in these crises. Nonetheless, sound policy suggests a greater role for the legislature in consultation with the governors, both to inform their constituents about the decisions undertaken and to build political support for additional measures that may later be required. The major challenge faced by those who seek change in the present arrangements is to find the proper balance between the need of the executive to act in times of clear emergencies and the duty of the legislature to exercise its role as the maker of laws. Will new statutes become tantamount to a “legislative veto” by which lawmakers can void an emergency order by majority vote? Or will they create a consultative process with timelines that prescribe which branch can do what and for how long? Since emergencies seem to be occurring more frequently, finding the proper constitutional balance will prove useful in the years ahead.