Bills target emergency powers
In pandemic backlash, legislators seek to rein in governors
As governors loosen long-lasting coronavirus restrictions, state lawmakers across the U.S. are taking actions to significantly limit the power governors could wield in future emergencies.
The legislative measures are aimed not simply at undoing 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 reexamination of balancing of legislative power with executive powers,” said 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 pandemic or other emergencies, according to the group.
About half of 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 push-back is coming primarily from Republican lawmakers, it is not entirely partisan.
Republican lawmakers 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 New York Gov. Andrew Cuomo to issue new mandates.
When the pandemic hit a year ago, many governors and their top health officials temporarily ordered residents to remain home, limited public gatherings, prohibited in-person schooling and shut down dine-in restaurants, gyms and other businesses. Many governors have been repealing or relaxing restrictions after cases declined from a winter peak and as more people get vaccinated.
But the potential remains in many states for governors to again tighten restrictions if new variants of the coronavirus lead to another surge in cases.
Governors 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, said 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’s Brad Little has repeatedly extended his monthlong emergency order since 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 the ability of people 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 a pair of constitutional amendments to limit disaster emergency declarations to three weeks, rather than three months, and require legislative approval to extend them. The Republican-led Legislature placed the measures on the ballot after repeatedly failing to reverse the policies Democratic Gov. Tom Wolf implemented to try to contain the pandemic.
In Indiana, the Republican-led Legislature and GOP governor are embroiled in a power struggle over executive powers.
The Legislature approved a bill last week that would give lawmakers greater authority to intervene in gubernatorially declared emergencies by calling themselves into special session. 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 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 legal 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, where new variants are fueling a rise in covid-19 cases, 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 law 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.
VACCINATION REQUIREMENT
Covid-19 vaccination requirements are fast becoming facts of life in the U.S., spreading business by business even as politicians and privacy advocates rail against them.
Brown, Notre Dame and Rutgers are among universities warning students and staff members that they will need shots to return to campus this fall. Some sports teams are demanding proof of vaccination or a negative test from fans as arenas reopen. Want to see your favorite band play indoors in California? At bigger venues, the same rules apply. A Houston hospital chain recently ordered its 26,000 employees to get vaccinated.
Yet it’s another matter how people prove they’ve had their shots or are virus-free. Republican politicians and privacy advocates are bristling over so-called vaccination passports, with some states moving to restrict their use.
Given the fraught politics, many companies are “not necessarily wanting to be the first in their sector to take the plunge,” said Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics at Harvard Law School. Still, “we’re going to see employers start to require vaccinations if you want to come into the office, if you will have a public-facing job.”
While there may be an uptick in companies asking whether they can require vaccinations, few are ready to make that commitment. The Biden administration is leaving the issue to the private sector, with White House press secretary Jen Psaki last week saying the federal government won’t issue vaccine passports. They are usually conceived of as smartphone apps that show the holder has been immunized against covid-19, eliminating the need to carry around the paper card that comes with completed vaccinations.
“It would be a simple check for employers to do,” said Susan Kline, an employment lawyer in Indianapolis. “But when you start looking at saying everyone has to show their passport, there starts to be a lot of obstacles.”
A recent survey by the consulting firm Mercer Total Health Management found that 73% of employers don’t plan to make vaccination a requirement.
“People don’t want to go into something that feels like an antagonistic relationship in their workforce,” said Mary Kay O’Neill, senior clinical adviser for Mercer. “Employers are just trying to be supportive and facilitative of getting the vaccine without it being a rule.”
The stipulations are following the same haphazard pattern that has characterized so much of the U.S. pandemic response, varying company by company, state by state, and subject to the vagaries of local politics.
“Idahoans should be given the choice to receive the vaccine. We should not violate Idahoans’ personal freedoms by requiring them to receive it,” said Idaho Republican Gov. Brad Little on Wednesday, after signing an executive order banning the vaccination requirement for people seeking public services. The governors of Florida and Texas have issued similar orders.
“Vaccine passports create different classes of citizens,” Little said.
And yet, New York state has unveiled its “Excelsior Pass” smartphone app to quickly prove vaccination or a clean test. The widely used Clear airport check-in system will soon offer its own version.
Many businesses have, so far, decided on a lighter touch. As they reopen offices, they have strongly encouraged employees to get vaccinated but stopped short of requiring it. That includes Amazon, which offers frontline employees as much as $80 to be immunized, and Walmart, which provides shots at its stores and gives associates two hours of paid time off to get theirs.
BIBLE STUDY RULING
In another late-night ruling, the Supreme Court on Friday blocked another California coronavirus restriction on religious gatherings, saying the state’s limits on home-based Bible study and prayer sessions violated constitutional rights.
The 5-to-4 order on an emergency petition illustrates how a new majority on the court — with Justice Amy Coney Barrett playing a decisive role — is now in control when the court considers if pandemic-related restrictions cross the line to endanger religious rights.
The challenge was lodged by Santa Clara County pastors Jeremy Wong and Karen Busch, who said the restrictions prevented their usual weekly Bible study and prayer sessions. The pair “sincerely believe assembling for small-group, ‘house church’ fellowship is just as indispensable to their faith as attending Mass is for a Catholic,” they said in their petition to the court.
Constitutional protections are implicated any time a state treats “any comparable secular activity more favorably than religious exercise,” the majority wrote. “It is no answer that a state treats some comparable secular businesses or other activities as poorly as or even less favorably than the religious exercise at issue.”
In this case, the majority said, gatherings of more than three households were banned at prayer meetings in homes even though California permits “hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time.”
The opinion was unsigned, but the majority was composed of Barrett and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh.
Chief Justice John Roberts indicated the court should not have granted the emergency petition challenging the restrictions but did not explain his reasoning. Justice Elena Kagan wrote a biting dissent for the court’s liberals.
The First Amendment requires a state to treat religious conduct as well as it treats comparable secular conduct, Kagan wrote.
California “does exactly that,” she wrote, adding that it adopted a blanket restriction on home gatherings to three households, “religious and secular alike.”
“California need not, as the [majority] insists, treat at-home religious gatherings the same as hardware stores and hair salons — and thus unlike at-home secular gatherings, the obvious comparator here,” Kagan wrote.
“The law does not require that the state equally treat apples and watermelons,” she wrote, joined by Justices Stephen Breyer and Sonia Sotomayor.