Lawmakers: Governor’s powers are topic for session

The Arkansas House of Representatives and Senate won’t meet by the end of this year to consider affirming support for Gov. Asa Hutchinson extending the state’s public health emergency declaration, legislative leaders said earlier this week.

Senate President Pro Tempore Jim Hendren and House Speaker Matthew Shepherd said their decisions to not hold meetings on the matter don’t reflect a lack of legislative support for the Republican governor’s use of his emergency powers to address the COVID-19 pandemic, but instead indicate many lawmakers preference to wait until the regular legislative session to begin debating possible changes to those powers.

The regular session is to start Jan. 11.

Hutchinson, who called last Thursday night for the two chambers to meet in a Committee of the Whole by the end of this year, announced late Tuesday afternoon that he will extend the public health emergency into next year. The governor on Friday extended the emergency, which was to expire Saturday, until Dec. 31.

“Since the General

Assembly will not be meeting as a Committee of the Whole to consider and affirm the current public health emergency, then I will continue the emergency declaration into next year,” Hutchinson said Tuesday afternoon in a written statement.

“The decision to not meet to consider the current emergency and to delay the consideration until next year is the prerogative of the General Assembly,” the governor said. As the state’s chief executive, he said, he will continue to lead and address the serious public health crisis “that is before us.”

Hutchinson announced in a televised speech last Thursday night that he was renewing his declaration and that he would ask the Legislature to meet as a Committee of the Whole to “support and affirm the current public emergency.” That announcement surprised some lawmakers and confused others.

The governor explained the following day that he called on the Legislature to meet by Dec. 31 to support continuing the emergency declaration past that date in response to some lawmakers who don’t want the declaration extended without their approval.

Arkansas Code 12-75-107 allows the Legislature to terminate a state of emergency “at any time” through a concurrent resolution.

The Legislative Council and legislative committees are meeting this week at the state Capitol in Little Rock.

Hendren, a Republican from Sulphur Springs, said Tuesday in a written note to senators that he won’t be calling for them to meet in a Committee of the Whole by the end of this year, after discussions with many of them and the House leadership about the governor’s request.

“I’ve heard from many of you about the desire to wait and have this discussion during the session,” he wrote. “We all know the Emergency Services Act will be vigorously debated during the session, as it should be. Rather than debating the issue twice most would prefer to wait and have the debate when we will be in a position to have time for more testimony, discussions, and actually implement any changes that we determine are appropriate.”

Hendren, who is Hutchinson’s nephew, said he has notified the governor about his decision.

Hendren said in an interview that many senators understand and support the governor’s use of his emergency powers. Hendren said he’s confident that a majority of the 35 members support continuing the state of emergency.

Sen. Jimmy Hickey, R-Texarkana, who is to become president pro tempore on Jan. 11, said Tuesday that the decision not to meet in a Committee on the Whole by year’s end doesn’t show a lack of support for the governor.

He said he expected that exemptions probably would have been proposed for any resolution extending the public health emergency. Some lawmakers didn’t want to approve such a resolution and then “it gets more restrictive,” he said.

Sen. Kim Hammer, R-Benton, said last week that he has drafted legislation so that if a declared state of emergency covered at least 19 counties and more than 750,000 people, the governor would be required to call the Legislature into session within two days to either approve or reject that declaration.

According to Hammer’s bill, the declared emergency would be terminated immediately if the Legislature rejected it. If the Legislature approved the emergency declaration, then the Legislative Council would have to consider any extensions every 30 days.

Rep. Jimmy Gazaway, R-Paragould, said last weekend that he will sponsor Hammer’s legislation in the House.

Shepherd, a Republican from El Dorado, said Tuesday in a written statement that “after reviewing the possible processes available, discussions with members, and given that at the end of the month we will only be eleven days from the next regular session, I have decided not to convene a Committee of the Whole.”

“I don’t think it should be perceived as a lack of support” for the governor’s use of his emergency powers, he said in an interview.

For the most part, Shepherd said, the decision not to meet had to do with timing, and many representatives wanted to debate emergency-powers issues in the regular session.

Rep. Dan Sullivan, R-Jonesboro, who is to be sworn in as a state senator Jan. 11, said Tuesday, “I am glad to see” there will be no Committee of the Whole this year.

He said he will soon file, for consideration in the session, a concurrent resolution to end the emergency order plus six bills to extend beneficial parts of the order, such as telehealth and virtual schools.

“We want to work with the governor,” Sullivan said. “Filing this legislation will show him we are supportive of many of the things in the emergency order.”

Sullivan and Hammer are two of 18 Republican state lawmakers who filed a lawsuit in September accusing the governor of exceeding his authority in responding to the COVID-19 pandemic.

In mid-October, Pulaski County Circuit Judge Wendell Griffen dismissed the lawsuit.

Griffen ruled that Hutchinson acted within the scope of the powers delegated to his office by the General Assembly through the 1973 Arkansas Emergency Services Act to respond to major disasters, among them the outbreak of epidemic or contagious diseases.

The 18 lawmakers argued in their lawsuit that any virus-fighting rules the Health Department wanted to impose required legislative approval to take effect. But the judge’s ruling included a finding that legislators had endorsed the Health Department’s authority in 2018 when the Legislative Council approved the agency’s rules for reportable diseases. Griffen’s ruling has been appealed to the state Supreme Court.