The General Assembly returns to Richmond on Tuesday for a special session. Democrats are there to enact police reform and other social justice legislation in the wake of the George Floyd killing. Republicans are there to talk about the budget and limiting the power of the governor to issue emergency orders.
The police and budget issues aren’t very interesting because they break down along predictable partisan lines. The question about gubernatorial power, though, is far more intriguing because while it begins as a partisan question, it’s really far more complicated. Just how extensive should a chief executive’s emergency powers be? That’s a question nearly as old as the republic — Alexander Hamilton dealt with the president’s emergency powers in the Federalist Papers — and in theory we ought to be able to debate the question without a partisan tint. In practice, though, that’s impossible because right now we have a Democratic governor and a pandemic that’s become politicized so naturally Democrats are likely to be inclined to take a broader view of the governor’s emergency powers than are the Republicans. It’s hard to debate philosophical questions like the proper balance of power between the executive and the legislature in an academic fashion when there’s actual power involving your party — and the other party — at stake. Rhetorically, Republicans have the better argument: “The legislature should be doing more, and it would be empowering to the people,” state Sen. Steve Newman, R-Lynchburg, told The Roanoke Times' Amy Friedenberger. “Democracy is a good thing. I know that a dictatorship is very efficient, but that’s not the way free people should be governed.”
What if you’re a Democrat who thinks that Northam has generally done the right things policy-wise, but you think Republicans have a point about balance-of-powers? That’s not an unreasonable point of view. Where you stand often depends on where you sit and this is one of those. In Virginia, we have Republicans arguing that the legislature should curtail the governor’s vast emergency powers. In Washington, the dynamics are completely reversed. There we have a Republican president who has taken an expansive view of presidential power and Democrats who think Congress should be more assertive while Republican legislators are mostly silent. We guarantee that if there were a Democratic president, Republicans would suddenly find new interest in congressional checks-and-balances. Likewise, Virginia Democrats might not be so supportive of gubernatorial power if there were a Republican governor. That’s the danger of any executive power: Each party needs to imagine that power in the hands of a president or governor they don’t like.
In any case, here’s what Virginia Republicans have proposed. Newman has introduced a bill that would limit an emergency order to 30 days without General Assembly approval. If the legislature doesn’t act, a governor could re-issue the order for another 30 days but no more. State Sen. David Suetterlein, R-Roanoke County, has introduced a bill to limit such orders to 45 days without legislative approval.Del. Tony Wilt, R-Rockingham County, has a proposed constitutional amendment that do the same thing. Whatever you think of Northam’s policies, these Republicans proposals to curtail gubernatorial power don’t appear out of line with the rules that exist in some other states where there are limits to how long a governor can declare a state of emergency (here’s the obligatory reference to states as “laboratories of democracy.”)
Georgia mandates that if the governor declares an emergency “as a result of a public health emergency” he or she must automatically call the legislature into session.
In Kansas, a governor may only declare an emergency for 15 days unless the state’s Finance Council says it can last for 45 — that council consists of the governor and eight legislative leaders, from both parties.
The District of Columbia isn’t a state but wants to be. It allows the mayor to issue emergency declarations for only 15 days but has created a 90-day exception for declarations related to the current pandemic. After that, the city council has to approve anything.
In Minnesota, a governor may only declare an emergency for 30 days unless it’s extended by the state’s “executive council,” which consists of the governor, lieutenant governor, secretary of state, state auditor, and attorney general.
In Alaska and Utah, an emergency order may only last for 30 days unless extended by the legislature.
In Montana, the governor has to call a special session within 45 days of an emergency declaration or it expires.
In Wisconsin, an emergency declaration can only last for 60 days unless extended by the legislature.
At least 25 states give the legislature the power to cancel a gubernatorial declaration of emergency at any time. Other states don’t appear to impose any significant limits on gubernatorial declarations of emergency, according to a list compiled by the National Conference of State Legislatures. North Carolina is on the opposite end; its state code specifically says that an emergency can last as long as the governor deems it necessary, so in theory a governor can declare an emergency on day one and then could spend all four years in office operating under the declaration. Hawaii likewise says the governor “shall be the sole judge of the existence of the danger, threat, or circumstances giving rise to a declaration of a state of emergency.”
Newman’s proposal mirrors the law in an American territory — the Virgin Islands. The Suetterlein and Wilt proposals are similar to Montana. Don’t expect either of these proposals to go far in a General Assembly currently controlled by Democrats inclined to defend their party’s governor — although some may silently wonder whether Republicans don’t have a point. Imagine how Democrats would react if President Trump took a more energetic approach toward fighting the virus and was issuing order after order about how Americans should conduct themselves during the pandemic. (Never mind that these are really state powers, not federal powers — we’re trying to make a point to show how both parties are often inconsistent). The real problem here is that most emergency declarations deal with short-term emergencies — floods, blizzards, earthquakes, maybe the occasional riot. Here we have something — a virus — that might be around for years. How should government be structured to deal with that?
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