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