Lawmakers need more emergency powers

The Arizona Legislature should play a larger role in declaring states of emergency. But what authority that triggers also needs a major overhaul

Republican lawmakers are focused on the question of who decides that there is a state of emergency triggering extraordinary governmental powers.

That’s an appropriate inquiry, and a larger role for the Legislature is in order.

But there is an equally large question that GOP legislators are ignoring. In an emergency, what extraordinary powers should the government possess?

Arizona statutes regarding emergency powers are an anachronistic mess and muddle. They need reconsideration and rewriting.

Whether an emergency exists, triggering extraordinary government authority, shouldn’t be the unchecked decision of a single person. Yet, during the COVID-19 pandemic, as a practical matter that’s what happened.

Gov. Doug Ducey exercised that authority unilaterally.

Under existing state law, the governor declares an emergency. But the Legislature can terminate the emergency by resolution of both houses. So, there is a theoretical check and balance.

However, the Legislature wasn’t in session for most of the time Ducey was exercising emergency powers during 2020. The governor can call the Legislature into special session, but Ducey obviously had no such inclination. And the Legislature can call itself into special session. But that requires a two-thirds vote, which couldn’t be mustered.

So, as a practical matter, there was no check and balance on the governor’s emergency declaration authority for around nine months. That’s too much power concentrated in a single set of hands.

Senate Concurrent Resolution 1003, which has passed the Senate, changes that in sensible ways, with one reservation.

Under SCR 1003, if the governor declares an emergency, he also has to call a special session of the Legislature. In addition to being able to terminate the emergency by resolution, it would require a positive vote of the Legislature to extend the emergency beyond 30 days. The Legislature would have to renew approval of the state of emergency every 30 days.

That ensures a continuing concurrence between the governor and Legislature about the need for extraordinary governmental powers. In our system of checks and balances, that is as it ought to be.

The reservation is over the length of time. In a pandemic, 30 days seems unnecessarily short. Sixty or 90 days would still provide the appropriate check, while not impairing mitigation programs with a longer fuse.

The vote was entirely partisan, with Republicans in favor and Democrats opposed. That is not as it should be. This is a design of government issue that should be considered independent of views about how Ducey handled the COVID-19 response, and even what emergency powers the government should have or wield.

On that score, COVID-19 exposed the lack of clarity in existing law.

The statutes say that, in an emergency, the governor may exercise directly any powers granted to state government by the Constitution or state law.

Now, there is a specific state law dealing with pandemics. It empowers state government to quarantine those with the disease or exposed to it. Ducey, however, did not exercise that power to deal with the disease directly.

Instead, he sought to curtail the spread of the disease indirectly through stay-at-home orders and restrictions on businesses. State law provides no such express authority.

He also sought to mitigate economic knock-on effects, through eviction and foreclosure moratoria, again something that finds no sanction in state law.

Current state law also gives mayors and chairmen of county boards of supervisors independent emergency powers, in some cases greater than those expressly given to the governor. That makes no sense.

In Arizona, mayors and county board chairmen aren’t executive positions and aren’t sensible repositories of emergency powers. And why should they have express powers arguably denied the governor?

Emergency powers shouldn’t be subject to ad hoc negotiations between the governor and Legislature in the midst of an emergency. The continuing concurrence of the Legislature that an emergency exists ought to be required. But the emergency toolkit should be decided in advance, with the governor given a free hand to use what’s in it.

At the county and city level, the declaration of an emergency should also be subject to checks and balances, and the toolkit better coordinated with that of the state.

If the Legislature simply inserts itself into the emergency declaration business, it’s just doing half the job.