By Pam Greenberg and Matthew Sullivan | February 2022
A QUICK LOOK INTO IMPORTANT ISSUES OF THE DAY
For state governments throughout the United States, the institutional impacts of the COVID-19 pandemic are difficult to overstate. To mitigate public health concerns and protect citizen lives in the process, states of emergency were called by governors throughout the country to respond quickly to changing circumstances.
Gubernatorial powers in emergencies generally have basic characteristics in common: declared emergencies expand the power of the executive, reduce the burden to enact executive orders and exist for a specified duration of time that can be renewed.
The COVID-19 declarations allowed governors to tap state funds, allocate resources and prohibit price gauging, but also led to more controversial orders, such as school closures, mask mandates, and occupancy restrictions, as governors turned to executive health departments to make decisions at a faster pace than the typical legislative process affords.
However, what began as short-term public health measures implemented during the early days of the pandemic, turned into months-long actions. The unique nature of a global pandemic has stretched the bounds of what constitutes a typical emergency and prompted legislators to reexamine the laws that govern the declarations and their continuation.
Although some state-level emergency declaration laws have roots as deep as the American Revolution, others were created more recently—some enacted during the Cold War or following the 9/11 attacks on the World Trade Center and Pentagon. Others passed in response to natural disasters or other local emergencies. States of emergency were largely envisioned as events that easily rallied consensus and didn’t last long. Governors were granted substantial power to respond promptly to emergencies—scenarios quite different from the rolling waves of viral outbreaks that have come to characterize the COVID-19 pandemic.
Many legislators throughout the country have seen these extended states of emergency as a critical, broader separation of powers concern and have proposed bills to reign in gubernatorial and executive emergency actions. While some legislation overtly references and applies only to the current pandemic, other measures address a broader philosophical question of governance: how much power should the executive have and how can legislatures ensure they are an effective counterweight, especially in a state of emergency?
Opponents of legislation seeking to limit the authority of governors in times of emergency say that constraining those powers could significantly impact public health. Proponents say the prolonged executive powers seen during the pandemic have led to overreach by governors, with little transparency, public input or legislative involvement and oversight.
Legislative chambers in at least 47 states, Guam and Puerto Rico introduced or considered more than 300 bills or resolutions in 2020 and 2021 that provide expressly for direct legislative involvement in, or oversight of, certain gubernatorial or executive actions taken during the COVID-19 pandemic or other emergencies. These actions also include legislation that would make structural changes in laws related to declarations of emergency or emergency orders (such as their duration, termination or extension), provide for legislative oversight of emergency spending, and relate to legislatures' ability to meet in special session. At least 25 states passed legislation or resolutions to directly address these issues in the past two years.
Among the most common provisions enacted are those that ensure greater oversight of emergency spending. For example, legislation passed in Florida calls for transparency and legislative review of expenditures by requiring audits of contracts entered into during extended emergencies. At least 13 other states in 2020 and 2021 passed legislation requiring legislative review of emergency expenditures, although some limited the actions to apply only to the COVID-19 emergency.
At least nine states enacted laws giving the legislature the authority to terminate a state of emergency or executive order. Other legislatures restricted the length of time they could be in effect. Ohio limited the duration of a state of emergency to 90 days, and Tennessee changed the length of an emergency from 60 days to 45 days. At least seven states also limited the number of times a state of emergency or order can be renewed under the same or similar circumstances, some also placing limits on the length of renewals.
Some legislatures also changed the rulemaking process of executive agencies, inserting an increased presence of the legislature for oversight purposes. For example, Ohio and Utah established procedures in which rules proposed by public health agencies during a state of emergency are overseen by a committee formed by members of the legislature. At least 10 other states passed legislation to provide for more legislative oversight or review of emergency orders, rules or regulations.
To address concerns about transparency and public input during emergencies, Utah created an ad hoc legislative committee to hold public meetings to discuss and hear testimony on the nature and conditions of an emergency, and to provide a recommendation to the legislature as to whether to extend the state of emergency by joint resolution. Colorado, which had some executive branch emergency oversight provisions in place pre-pandemic, now requires the governor to meet with legislative committees at specified dates following the declaration of a disaster emergency. Indiana created a legislative state of emergency advisory group and Ohio now has an oversight and advisory committee to oversee executive emergency actions.
One critical challenge facing some legislatures is the ability to exercise oversight when not in session. Prior to the pandemic, in 14 states only the governor could call a special session. Arkansas, Idaho and Kentucky passed resolutions that call for voter approval in 2022 of constitutional amendments to allow the legislature to call itself into special session. Indiana also passed legislation to allow the legislature to call itself into emergency session, but Indiana’s governor has challenged the law, arguing that the legislature is "usurping a power given exclusively to the governor" under the state constitution. The case will be heard by the Indiana Supreme Court in 2022.