Opinion: Senate holds emergency powers work session

Jason Mercier of the Washington Policy Center believes today’s work session is the first time that the Senate State Government & Elections Committee has reviewed emergency powers this year.

Jason Mercier of the Washington Policy Center believes today’s work session is the first time that the Senate State Government & Elections Committee has reviewed emergency powers this year

Jason Mercier
Washington Policy Center

The Senate State Government & Elections Committee held a work session today (Nov. 16) titled “Legislative role during state emergencies.” I believe this is the first time that committee has reviewed emergency powers this year after failing to hold a public hearing last session on the bipartisan SB 5039 (Subjecting all gubernatorial emergency orders to legislative approval after thirty days). 

The committee members heard three presentations: 1) Update from staff on current emergency powers statutes, 2) NCSL update on Legislative Oversight of Emergency Executive Powers, and 3) My presentation on Requiring Legislative Oversight of Emergency Powers.

Here is a video of today’s work session.

I told the committee that in an emergency, governors need broad powers to act fast. Legislative bodies inevitably take longer to assemble and act than a single executive, so they temporarily delegate their power to the executive in emergencies. But these powers are supposed to be transferred for a limited period of time.

Jason Mercier
Jason Mercier

For example, in Wisconsin a state of emergency cannot exceed 60 days unless it is extended by a joint resolution of the legislature, and in Minnesota, a governor must call a special session if a “peace time” emergency lasts longer than 30 days.

When situations last for extended periods, longer term policies need to be implemented and the legislature needs to debate risks, benefits and trade-offs of various approaches. Lawmakers may end up passing the very policies the governor would prefer to see implemented, but they do it after deliberation as representatives of the people and do it in a public process.

It’s the legislature, not the governor, that is charged with making law, and the governor who is charged with implementing the laws passed by the legislature.

Washington, however, has very weak statutory emergency powers oversight according to a national study:

“Vermont, Washington, Ohio and Hawaii are among the worst-ranking states because they bestow on their governors the sole authority to determine when and where an emergency exists, and when an emergency ceases to exist.”   

Interestingly, just last week the Hawaii Speaker of the House announced his plans to require legislative oversight of emergency powers in his state:

“I don’t think anyone agrees that a proclamation should continue forever,” said House Speaker Scott Saiki…“I’ll be working on a bill that will allow the Legislature to basically disapprove the governor’s emergency proclamation whether it’s the entire proclamation or just a portion of the proclamation.”

We saw many efforts nationally during the past year to restore the balance of power between the executive and legislative branches. Some of the examples:

  • New Mexico: Rep. Daymon Ely (D-23) – “It has nothing to do with whether the governor has done an excellent job or not [with the pandemic]. It has to do with whether the Legislature should have a role.”
  • Hawaii: Rep. Scott Nishimoto (D-21) – “There needs to be checks. I think that is what my constituents were concerned about, that the governor has unilateral power to do things indefinitely and there is a lack of community input.”
  • New York: Senate Majority Leader Andrea Stewart-Cousins (D-35) – “I think everyone understands where we were back in March and where we are now. We certainly see the need for a quick response but also want to move toward a system of increased oversight, and review. The public deserves to have checks and balances.”
  • Massachusetts: Sen. Diana DiZoglio (D-1) – “This is not a dictatorship. The governor has taken a top-down, authoritative approach to the COVID-19 response and as a result many residents have not been heard. It’s too much for any one person and one administration to handle when dealing with emergencies of this scale and length.”
  • Utah: Sen. Luz Escamilla (D-1) – “Politicians are beholden to their constituents. They want positions of why decisions are being made. Right now, we are not part of that process.”
  • New York: Sen. Julia Salazar (D-18) – “Without exception, the New York State Constitution calls for the Legislature to govern as a co-equal branch of government … it is clear that the expanded emergency powers granted to the Governor are no longer appropriate.”

As for Washington state, I encouraged the committee today to reform the state’s emergency powers in a way that is very similar to what was proposed by SB 5039. Here is my recommended amendment to RCW 43.06.220 (4):

“No emergency order issued by the Governor may continue for longer than 30 days unless extended by the legislature through concurrent resolution. If the legislature is not in session, the emergency order may be extended in writing by the leadership of the senate and the house of representatives for 30 days or until the legislature can extend the emergency order by concurrent resolution. For purposes of this section, ‘leadership of the senate and the house of representatives’ means the majority and minority leaders of the senate and the speaker and the minority leader of the house of representatives. An emergency order narrowly written solely to qualify for federal funds is exempt from the requirement to receive legislative extension.”

This reform would ensure that every emergency order by the Governor is subject to at least some type of legislative oversight while maintaining the flexibility to issue very narrow orders to receive federal relief funds.

Long lasting emergency orders should receive the input of 147 legislators from across the state following a public process, allowing the perfection of policies through a collaborative weighing of all the options, alternatives and tradeoffs. This is precisely why the people’s legislative branch of government exists – to deliberate and provide guidance to the executive branch on what policies should be in place and how to implement them.

Whether 14, 30, 45 or 60 days, at some point the executive branch should be required to receive permission from the legislative branch to continue making far-reaching policies under an emergency order. Our system is not meant to be the arbitrary rule of one behind closed doors. It is time to end governance by press conference and return to the normal public legislative process.

Jason Mercier is the director of the Center for Government Reform at the Washington Policy Center.

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