COVID-19 – From the Peanut Gallery

COVID-19 and Emergency Powers IV – The Wrap-Up

Three years ago tomorrow, March 21, 2020, NJ governor Philip Murphy issued Executive Order 107, which mandated that people stay at home. Although it was a drastic step, the COVID pandemic was still pretty new, deaths were mounting, and we did not know how to handle it. As I recall, it was thought that the time from exposure to severe symptoms did not exceed two weeks, so I expected that the restrictions would last two weeks within which time the spread of the virus would be controlled. As we know, it didn’t work that way.

Executive Order 107 was just one of many emergency measures adopted by the executive branch under powers delegated for use in an emergency (or perhaps not((For example, in the early days of the COVID pandemic, Bergen County Executive James Tedesco ordered all malls in the county to close until further notice in order to prevent the spread of the disease. When asked about his legal authority to shut down private businesses, Tedesco responded: “I have the moral authority.” NJ coronavirus: All Bergen County malls must close (northjersey.com). Because Tedesco’s closure order was quickly subsumed by Governor Murphy’s, the question of legal authority was never authoritatively tested.))) but justified on the basis of an emergency.¹

My essential thesis is this: In the beginning the COVID-19 pandemic was an emergency requiring urgent action, and this justified the invocation of powers delegated for such events. After the initial weeks or months, COVID, although still a major problem, no longer justified the routine exercise of emergency powers. It remains dire but is not urgent. Our legislatures could assemble, personally or virtually, and pass laws to deal with the situation. While I have often criticized COVID emergency measures as “rule by decree,” I am not an anti-vaxxer² nor did I oppose the concept of requiring the wearing of masks in public.((Although it should have been put on a legal foundation with law enforcement rather than business owners responsible for enforcement of the mandate.)).

The problem, as many governors and other wielders of executive authority saw it, was that the legislators would not pass the right laws, or do it quickly enough. And so many COVID emergency declarations have remained in effect even though, for most of us (thanks in large part to rapidly developed vaccines), the daily routine is now much like it was before the pandemic. Emergency declarations allow the executive to bypass pesky limitations (described as “unnecessary red tape or bureaucratic obstacles”) on their ability to do what they want.³

Recently the Washington Post published a story by Lauren Weber and Joel Achenbach entitled “Covid backlash hobbles public health and future pandemic response,”((The story appears at https://www.washingtonpost.com/health/2023/03/08/covid-public-health-backlash/ (paywall) and is reproduced by MSN at https://www.msn.com/en-us/news/us/covid-backlash-hobbles-public-health-and-future-pandemic-response/ar-AA18mBh, and was published in the print by the Star-Ledger on March 16, 2023, at page H1.)) in which the authors bemoan the (mostly) Republican response to some of the COVID measures.((The always understated Fox News has this response to the story: Washington Post torched on Twitter after complaining health officials have limited powers: ‘Medical fascism’.)) The point of this story is that opposition to overstepping in the COVID emergency and support for the separation of powers will lead to an inability to deal with the next pandemic.

There will come a time when something else requires an emergency response. Before that happens is the time to give serious thought to what authority is to be given to the executive branch and administrative agencies, and for how long. Declaring an emergency when the legislature does not agree with the executive’s policy preferences cannot be the knee-jerk response. The emergency measures must be tailored to the emergency, which cannot be the excuse for at best tangentially related policy preferences, like widespread voting by mail and student loan forgiveness.((See, for example, Elizabth Goitein’s comments which I quoted in The Misuse of Emergency Powers: “[The] purpose [of emergency powers] is to give presidents a short-term boost in power in situations that Congress cannot have foreseen (because they arise suddenly and without warning) and that Congress is ill-suited to handle (because they require immediate or highly nimble responses). Emergency powers are not intended to address longstanding problems, no matter how serious. Nor are they meant to authorize permanent or long-term policy solutions that Congress itself could provide but has chosen not to.”)) So long as our legislators can assemble, they get to make the policy decisions. As I concluded a post entitled What’s More Important: Process or Substance? almost two years ago, “While many might accept rule by an all wise and benevolent despot, remember the democracy is a process.”

Jay Bohn

March 20, 2021

I have previously been critical of the misuses of such powers: COVID-19 and Emergency Powers; COVID-19 and Emergency Powers II – Not Much Has Changed; COVID-19 and Emergency Powers III – Still Not Much Has Changed; and The Misuse of Emergency Powers. [↩]
It is Time for Vaccine Passports [↩]
As I noted in Superstorm Sandy, Ten Years Later: The State of Emergency Continues, we are (or as of 2022 were) still in the state of emergency declared in connection with Superstorm Sandy in 2012 for exactly that reason. [↩]

COVID-19 and Emergency Powers III – Still Not Much Has Changed

Two weeks ago I revisited the topic of an early April post regarding emergency powers. The impetus for the recent post was ABCNews.com’s article on a decision of the Kentucky Supreme Court regarding legislation which had limited that governor’s emergency powers. Inspired a an article entitled, “Most States have cut back public health powers,” on the front page of yesterday’s Express-Times, have much the same to say.

The article, sourced from Kaiser Health News, reports that 26 states with Republican legislatures “[took] away that powers that state and local officials use to protect the public against infectious diseases.”

The federal and state constitutions all provide for some form of separation of the legislative and executive powers. In this post I am going to consider state emergency declarations. By constitutional provision or legislation, the governor is often given the authority to declare an “emergency” and to exercise some degree of the legislature’s powers. There is no doubt that in March 2020 the new and rapidly spreading COVID-19 pandemic was an emergency. While it is still a crisis and we cannot go back to normal, I no longer consider it an emergency that requires (or even permits) legislators to sit back and accept whatever the governor decrees. The legislature is not prevented from meeting and has had ample time to assess the pandemic and consider the policies that the state should adopt to address it. Allowing the governor to rule by decree under the guise of a continuing emergency is a threat to democracy.((Let me be clear: My objection is to the process, not the substance. For example, I do not oppose, indeed I encourage, a legislatively-imposed mask mandate enforceable under the state’s criminal law (and not making store-owners the primary enforcers) and a widespread vaccine mandate, without a testing opt-out.))

While each limitation on executive emergency authority should be examined on its own merits (and there is insufficient detail in the article to do so with regard to any particular limitation), the real objection that the traditional news media has to limitation on emergency powers is that they believe that the particular policy choices made by governors are wiser (after all, they are “guided by science”) than those made by legislators.

In recent years the media have pushed as a guiding principle of political decision-making that the process must be transparent.((There is a quote, often but possibly not accurately attributed to Otto von Bismark along these lines: “No one should see how laws or sausages are made.”)) The legislative process is (or certainly should be) significantly more transparent than the executive decision-making process.

In New Jersey the governor has repeatedly tightened and loosened various restrictions, all in the name of science, but never explaining how the particular restriction (e.g., public gatherings limited to ten or to twenty-five) was related to a specific fact about the current state of the pandemic.

There is some information available about Pennsylvania’s initial lock-down order and Governor Wolf’s order that all non “life-sustaining” businesses be closed because there was a lawsuit challenging that restriction and the governor’s staff had to provide discovery on the process by which the orders were drafted. As the federal district court found:

The record shows that Defendants never had a set definition in writing for what constituted a “life-sustaining” business. Rather, their view of what was, or was not, “life-sustaining”
remained in flux. [citation omitted] Finally, the record shows that the definition of “life-sustaining” continued to change, even after the waiver process closed.
County of Butler v. Wolf, Civil Action No. 2:20-cv-677, opinion issued 9/14/20, p.49.

In the near future I intend to comment upon the amazing fact that we seem not to have learned any lessons from early COVID experiences.

Jay Bohn
September 20, 2021

COVID-19 and Emergency Powers II – Not Much Has Changed

About four months ago I wrote a post entitled COVID-19 and Emergency Powers in which I commented on the tendency of the nation’s governors to seize upon the COVID-19 pandemic to exercise emergency powers. I said

attempts to rein in the use of emergency powers have been viewed through the prism of politics or the perceived merits of the action taken rather than process considerations or the constitutional separation of powers.

Nothing has changed.

In a recent article, Kentucky gov suffers legal defeat in combating COVID surge, ABCNews.com reported on a ruling of the Kentucky Supreme Court ordering the dissolution of an injunction against legislation which limited the governor’s emergency powers. The ABC News article seems to imply that only governors can aggressively and correctly decide what’s best for the rest of us to combat COVID.((Unless of course the governor wants to prohibit mask and vaccine mandates, in which case local control becomes more important.))

Governors, like the President, exercise executive authority.¹ State legislatures may have delegated to their respective governors some portion of their legislative power to exercise when necessitated by an emergency. In the absence of a specific state constitutional provision, why shouldn’t the same legislature be able to exercise its law-making power to act as a check on this delegation?

COVID has been with us for a year and a half. True, there always seem to be developments, but it is no longer something new that justifies allowing one person to be the sole decider of each state’s response. Every exercise of emergency power to avoid the inefficiencies of the legislative process makes it that much easier to see the next event as an emergency .

Jay Bohn
September 6, 2021

The extent to which they share this authority with other officials not subordinate to them is a matter of the constitutional law of the specific state. [↩]

EO 128 Neither Fish Nor Fowl

A few days ago I posted about an Appellate Division decision which upheld Governor Murphy’s Executive Order 128, which permitted residential tenants to apply their security deposits against rent due during the COVID-19 pandemic. Given the length of the pandemic, this order is of relatively little help to tenants and relatively little harm to landlords. The eviction moratorium is the bigger issue.

We should all recall the initial panic arising from the pandemic’s effect on the economy, coupled with Governor Murphy’s stay-at-home order and the closing of large sectors of the economy. However, few publicly admitted that it would last as long as it has.

Early on, on March 19, 2020, by EO 106 Governor Murphy decreed a temporary emergency moratorium on evictions for the stated purpose of preventing greater spread of COVID if tenants who could not pay their rent became homeless,((Unlike the CDC’s eviction moratorium, New Jersey’s suspension of this legal remedy is not means-tested. The tenant does not even have to allege, much less prove, a loss of income, whether due to COVID or any other factor.)) a moratorium that was subsequently ratified by the Legislature and is now scheduled to end on December 31, 2021. Just over a month later, on April 24, 2020, the governor issued EO 128, which permitted the tenant to direct the landlord to apply the security deposit to rent due. But by that point it was clear that reducing rent arrearages (already accumulated or which would accumulate as the pandemic continued) of those tenants who had stopped paying rent would not cure the default. Even with this relief the tenant is still going to owe rent; at best application of the security deposit to rent would marginally reduce accumulated late charges and interest (if the lease provides for same) and the total amount due.

Given the length of the pandemic, the loss of the security deposit is also of little harm to the landlord. The purpose of a security deposit it to protect the landlord from the tenant’s violation of the terms of the lease, primarily by the failure to pay rent or damage to the leased property. Application of the security deposit to rent due during the lease((As the court pointed out a couple of times, it is common for tenants even in non-pandemic conditions to apply a portion of the security deposit to rent by simply not paying the last month’s rent. The tenant will have vacated the property before an eviction could be effected and the landlord is belatedly made whole by getting a portion of the security deposit. If the last month’s rent plus damage to the property exceeds the security deposit, the landlord is put to the trouble of suing the (former) tenant and then collecting any judgment obtained.)) does mean that there is less (or none) available to address damages, but there is also less rent due. Because money is fungible, the landlord is really in the same position.

There have been various programs whereby the government (meaning of course we taxpayers) will assist tenants with the payment of rent. They have been long in coming. Perhaps the government should have bought up overdue rent arrearages (at par), and then sought to collect (or forgive) it after the pandemic was over. At the least, landlords should have been permitted the same grace periods to pay property taxes on rental housing whose tenants were not paying rent.

But, given the length of the crisis, EO 128 was really a solution in search of a problem. Although it did not substantially help, I don’t see that it substantially hurt either.

COVID-19 and Emergency Powers

In response to the COVID-19 pandemic, the nation’s governors have issued many and varied emergency declarations and used these declarations to justify the exercise of legislative powers that they would not normally possess. Unfortunately, attempts to rein in the use of emergency powers have been viewed through the prism of politics or the perceived merits of the action taken rather than process considerations or the constitutional separation of powers.

The expansion of executive powers in the face of an emergency is not a feature of the United States Constitution (and probably not most State constitutions either) but rather has a statutory basis. Therefore, what constitutes an “emergency” and what may be done when one exists will be defined by the statute.

These issues are evident in the Supreme Court of Wisconsin’s March 31, 2021, decision in Fabick v. Evers. In that case a private citizen, Jeré Fabick, challenged certain declarations of emergency issued by Governor Tony Evers as being contrary to the terms of the relevant statute. Media coverage of the case does not go much beyond the fact that the governor is a Democrat, the Legislature has Republican majorities in both houses, and the elected Supreme Court (which is perceived to have a four to three conservative majority) voted along ideological lines to overturn the emergency declarations that were challenged.

The substantive legal issues were based upon the following statute:

If the governor determines that a public health emergency exists, he or she may issue an executive order declaring a state of emergency related to public health for the state or any portion of the state and may designate the department of health services as the lead state agency to respond to that emergency. . . . A state of emergency shall not exceed 60 days, unless the state of emergency is extended by joint resolution of the legislature. . . . The executive order may be revoked at the discretion of either the governor by executive order or the legislature by joint resolution.
Wis. Stat. § 323.10

Another statute defines public health emergency as “the occurrence or imminent threat of an illness or health condition” meeting certain criteria. [Wis. Stat. § 323.02(16)]

Governor Evers has issued several emergency declarations arising from the COVID-19 pandemic, most of which expired after 60 days. Not only did the Legislature not act to extend any of the governor’s emergency declarations, but it used its statutory authority to terminate one of them. (In response to the termination–in fact on the very same day–the governor issued another such declaration.)

A majority of the Wisconsin Supreme Court determined that § 323.10’s limit on the length of an emergency to 60 days and the grant of power to extend that period to the Legislature alone meant that the governor could not simply declare a new emergency on the same basis. (The three dissenting justices argued that the various emergency declarations that were struck down were each based upon a different “occurrence” and so were permissible.)

My point is not whether or not the decision is correct as a matter of Wisconsin law (the Wisconsin Supreme Court is the final judge of that) or whether particular responses to the pandemic (e.g., mask mandates, quarantines, business closures) should be undertaken, but the danger to democracy of allowing a single person the unchecked power to make that decision.

Why do we accept that the existence of an emergency justifies extraordinary executive power? It must be because the normal processes of government are unable to address the emergency condition, most likely because the need for a response is urgent and the Legislature cannot react in a timely manner. Superstorm Sandy was a perfect example. Emergency conditions existed during the storm and the immediate cleanup, but the normal machinery of government was able to resume its functions promptly.

The need for urgent action may well describe the situation with COVID-19 in March 2020 (when there was little to no public anticipation that the situation would last this long), but the pandemic has been with us for over a year now, although its severity has ebbed and flowed. Congress and state legislatures have not been prevented from meeting and continuing to pass laws. There is no reason that the continuation of the “emergency” should not have been placed on a statutory basis. That the situation is still dire does not mean it remains an emergency in the sense of requiring urgent action. The real issue is that the executive does not trust the legislature to do the right thing.

Where the State’s legislative and executive branches are controlled by different parties, it is certainly understandable if each branch were to believe that it has a better approach to the pandemic or for the legislature to seek to limit the power of the governor.

New Jersey does not even have that excuse. The governor is a Democrat and there are solid Democratic majorities in both the General Assembly and the Senate. The Legislature’s acquiescence to continued rule by decree is an abdication of its role.

It is certainly true, as judges would be the first to admit, that the courts are not staffed with public health experts who know better than anyone else. Where these issues become the subject of a judicial challenge, our courts must not hesitate to act for fear of criticism by those to whom constitutional rights and the separation of powers are a mere inconvenience.

Jay Bohn
April 8, 2021