As governors loosen long-lasting coronavirus restrictions, state lawmakers across the U.S. are taking actions to significantly limit the power they could wield in the future.
The legislative measures are aimed not simply at undoing the mask mandates and capacity limits that have been common during the pandemic.
Many proposals seek to fundamentally shift power away from governors and toward lawmakers the next time there is a virus outbreak, terrorist attack or natural disaster.
“The COVID pandemic has been an impetus for a re-examination of balancing of legislative power with executive powers,” according to Pam Greenberg, a policy researcher at the National Conference of State Legislatures.
Lawmakers in 45 states have proposed more than 300 measures this year related to legislative oversight of executive actions during the coronavirus pandemic or other emergencies, according to the NCSL.
About half those states are considering significant changes, such as tighter limits on how long governors’ emergency orders can last without legislative approval, according to the American Legislative Exchange Council, an association of conservative lawmakers and businesses. It wrote a model “Emergency Power Limitation Act” for lawmakers to follow.
Though the pushback is coming primarily from Republican lawmakers, it is not entirely partisan.
Republicans have sought to limit the power of Democratic governors in states such as Kansas, Kentucky and North Carolina. But they also have sought to rein in fellow Republican governors in such states as Arkansas, Idaho, Indiana and Ohio.
Some Democratic lawmakers also have pushed back against governors of their own party, most notably limiting the ability of embattled New York Gov. Andrew Cuomo to issue new mandates.
When the pandemic hit a year ago, many governors and their top health officials ordered residents to stay home, limited public gatherings, prohibited in-person schooling and shut down restaurants, gyms and other businesses.
They have been acting under the authority of emergency response laws that in some states date back decades and weren’t crafted with an indefinite health crisis in mind.
“A previous legislature back in the ’60s, fearing a nuclear holocaust, granted tremendous powers” to the governor, according to Idaho state Rep. Jason Monks, a Republican and the chamber’s assistant majority leader.
“This was the first time I think that those laws were really stress-tested,” he said.
Like many governors, Idaho Gov. Brad Little has repeatedly extended his month-long emergency order since originally issuing it last spring. A pair of bills nearing final approval would prohibit him from declaring an emergency for more than 60 days without legislative approval.
The Republican governor also would be barred from suspending constitutional rights, restricting people’s ability to work, or altering state laws like he did by suspending in-person voting and holding a mail-only primary election last year.
A measure that recently passed New Hampshire’s Republican-led House also would prohibit governors from indefinitely renewing emergency declarations, as GOP Gov. Chris Sununu has done every 21 days for the past year. It would halt emergency orders after 30 days unless renewed by lawmakers.
Next month, Pennsylvania voters will decide on a pair of constitutional amendments limiting emergency declarations to three weeks, rather than three months, and requiring legislative approval to extend them.
The Republican-led Legislature placed the measures on the ballot after repeatedly failing to reverse the restrictions imposed by Democratic Gov. Tom Wolf.
In Indiana, the GOP-led Legislature and Republican governor are embroiled in a struggle over executive powers.
The Legislature approved a bill this past week that would give lawmakers greater authority to intervene in emergencies declared by the governor. The House Republican leader said the bill was not “anti-governor” but a response to a generational crisis.
Gov. Eric Holcomb, who has issued more than 60 executive orders during the pandemic, vetoed the bill on Friday. He contends the legislature’s attempt to expand its power could violate the state constitution.
Legislative leaders said they intend to override the veto, potentially setting up a clash between the legislative and executive branches. Unlike Congress and most states, Indiana lawmakers can override a veto with a simple majority of both houses.
Several other governors also have vetoed bills limiting their emergency authority or increasing legislative powers.
In Michigan, Democratic Gov. Gretchen Whitmer vetoed GOP-backed legislation last month that would have ended state health department orders after 28 days unless lengthened by lawmakers.
Ohio Gov. Mike DeWine, a Republican, contended that legislation allowing lawmakers to rescind his public health orders “jeopardizes the safety of every Ohioan.” But the Republican-led Legislature overrode his veto the next day.
“It’s time for us to stand up for the legislative branch,” sponsoring Sen. Rob McColley told his colleagues.
Kentucky’s GOP-led Legislature overrode Democratic Gov. Andy Beshear’s vetoes of bills limiting his emergency powers, but a judge temporarily blocked the laws from taking effect. The judge said they are “likely to undermine, or even cripple, the effectiveness of public health measures.”
In some states, governors have worked with lawmakers to pare back executive powers.
Arkansas Gov. Asa Hutchinson, a Republican, signed a bill last month giving the GOP-led Legislature greater say in determining whether to end his emergency orders.
It was quickly put to the test by the Arkansas Legislative Council, which decided to let Hutchinson extend his emergency declaration another two months.
Kansas Gov. Laura Kelly, a Democrat, also enacted a law last month giving legislative leaders power to revoke her emergency orders.
Republican lawmakers insisted that their push to curb the governor’s power is not partisan.
Lawmakers said they didn’t realize how broad the governor’s power was until she started issuing orders last spring to close schools, limit indoor worship services and shutter businesses.
Republican House Speaker Blaine Finch said he believes the changes in Kansas’ emergency management law will encourage future governors to “use that power sparingly” and collaborate with lawmakers.
“Our system is set up not to give one person of any party too much power over the lives of Kansans,” he said. “We’re supposed to have checks and balances.”
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