There is growing fear among state legislative leaders that fallout from COVID-19 is eroding the checks and balances embodied in our system of government. Too often, they feel, governors are exceeding their authority and are not consulting legislatures to create solid, long-term policies.
Now, a year into the pandemic, legislators find themselves more likely to challenge decisions made without their input. And it’s not just happening in states where the legislatures and the governors are of different political parties.
Legislatures Challenge Governors
As the 2021 sessions get underway, legislatures are positioning to challenge governors on their decisions during the pandemic. Serious fights are erupting in some states over gubernatorial authority when it comes to spending federal money. Some legislators have joined in lawsuits (like business owners, religious groups and others) challenging the emergency powers of governors. In Michigan and Wisconsin, the legislative lawsuits were successful.
As the coronavirus deepened its hooks into the nation and the world, legislators found themselves fighting with governors over a variety of issues. Depending largely on party, there was greater or lesser support for shutdown orders, mask mandates or other health restrictions. Regardless of party, however, legislators weren’t happy when governors made decisions without giving them real notice or failing to consult with them to begin with.
There’s inevitably going to be more friction when there’s a partisan split, and most of the noise has come from states where power is divided between a governor of one party and a legislature controlled by the other.
“While we take this virus seriously, we will not be cover for his unilateral decision-making,” Kentucky House Speaker David Osborne, a Republican, said in November, after Democratic Governor Andy Beshear announced new restrictions just after briefing lawmakers. “Working with the legislature means more than calling us an hour before making his pre-determined edicts public.”
There’s always a healthy tension between the two branches of government, but during a pandemic, and as the health crisis worsened, there was more tension. —Representative Della Au Belatti, majority leader of the Hawaii House
But even in one-party states, there’s a growing sense that governors have been granted too free a hand. Attempts to restrain the power of governors are likely, perhaps after the worst of the pandemic has passed.
“Tensions and frustrations existed, there’s no way of getting around it,” says Representative Della Au Belatti, majority leader of the Hawaii House and a Democrat, the same party as her governor. “There’s always a healthy tension between the two branches of government, but during a pandemic, and as the health crisis worsened, there was more tension.”
A Threat to Legislative Authority
In states from New Hampshire to Texas, legislatures sued to block governors from spending federal CARES Act funding without their oversight. In May, the Mississippi legislature returned to session early to block GOP Governor Tate Reeves from spending the federal dollars on his own. In response, Reeves suggested that any resulting delay in disbursing the funds would be harmful, suggesting that in “the worst-case scenario, people will die.”
Mississippi Speaker of the House Philip Gunn, a Republican, did not take kindly to that suggestion, sending Reeves a letter saying he’d mischaracterized the intent of the legislation. “You said we ‘stole the money’ and people would die,” Gunn wrote. “Such cheap theatrics and false personal insults were beneath the dignity of your office. They were out of character for you personally.”
Later in the year, Gunn sued Reeves, successfully arguing that the governor had improperly vetoed a bill spending coronavirus relief funds. Gunn said he wished there were some other approach he could take, but that he felt he had to stand up against the “infringement of the executive branch into the duties of the legislative.”
In Minnesota, Republicans who control the Senate were angered by Democratic Governor Tim Walz’s multiple decisions to extend his own peacetime emergency powers. Those are supposed to lapse after 30 days, but the governor can extend them, absent a negative vote from the legislature. That hasn’t happened, with Democrats controlling the state House.
To express their displeasure, the Senate refused to confirm two state commissioners, in effect firing them.
Democratic Senator Matt Little says he understands his GOP colleagues don’t like Walz’s actions surrounding COVID-19 but adds that they’ve offered no alternative plans for keeping people safe. Kurt Daudt, the GOP leader in the Minnesota House, accepts that as fair criticism. He would prefer that the legislature come up with rules granting the governor specific powers for coping with the pandemic, while putting up guardrails to ensure the state doesn’t have one-person rule. But he admits that the legislature, despite meeting eight separate times during the pandemic, didn’t assert its own authority.
“By our own fault, we’ve created this vacuum that allows the governor to use his emergency powers,” Daudt says. “When people look back, they’re going to analyze whether the legislature has stepped up and earned the ability to lead. In Minnesota, they’re going to say we didn’t have hearings or show we had the ability to take leadership on this issue.”
That’s been the case in other states. There has sometimes been talk about moving to strip powers from the governor. There’s certainly been criticism surrounding lots of decisions. But legislators have not exactly been prolific about putting forward their own proposals or even acting on their complaints about executive overreach.
But relations between governors and legislatures haven’t been solely combative. Across the country, legislators have praised executive branch officials for helping them deal with countless constituent issues in areas such as the sluggish processing of unemployment benefits. New York Governor Andrew Cuomo, a Democrat, enjoyed as high a profile as any governor in 2020 but was actually more cooperative than he’d been in some previous years, says Senator Kevin Parker, the Democratic Senate majority whip. “Particularly during COVID, I felt that Governor Cuomo was frankly more collaborative than he had been prior,” Parker says. “We’re not beggars when it comes to the process of making law.”
During Colorado’s special session in November, Democratic Governor Jared Polis worked closely with legislators on bills supporting small businesses, funding food banks and assisting with child care. They also worked together on utility, rent and mortgage assistance and expanding access for students. “The governor is accessible to lawmakers from both parties and is always willing to listen to legislators’ ideas,” says Colorado Speaker of the House Alec Garnett, a Democrat. “His office provides frequent updates on the state’s pandemic response, including details on our hospital capacity, virus transmission rates and new public health guidance.”
Now’s the Time for Thoughtful Decision-Making
Legislators may remain shy about inserting themselves into thorny questions such as who should receive priority for coronavirus vaccinations, according to Justin Phillips, a political scientist at Columbia University, but he says now is the time for legislatures to play a more prominent role. They may not be able to make or even inform every day-to-day decision, but they are designed for policymaking. “It’s no longer about a rapid response,” Phillips says. “It’s time for more deliberative decision-making.”
It takes time to elicit wider input, but that’s what legislatures are there for. By not acting unilaterally, governors have a greater chance of finding consensus and making more thoughtful decisions. There are certainly plenty of areas, from improving contact tracing to shoring up budgets, where legislators can and will want to have a greater say. “People are champing at the bit for the legislature to start,” Hawaii’s Belatti says.
As millions of Americans are vaccinated and the pandemic recedes, legislators are bound to hold careful reviews of how governors handled the crisis. They’ll want to ensure that their states are better prepared for future emergencies, while also trying to think through the best ways to make sure governors don’t try to handle them alone, past the immediate moment of crisis.
“The power struggle between the two branches is an increasing topic of discussion when I talk with legislative leaders,” says Stacy Householder, director of NCSL’s Leaders and International Programs. “Legislative leaders take their constitutional responsibilities seriously and are concerned about an erosion of their role in creating policies that affect their constituents. Undoubtedly, we are going to see more legislatures challenge governors in the near future.”
Alan Greenblatt is a senior staff writer covering politics and policy issues for Governing.