{"id":982,"date":"2023-03-20T00:00:00","date_gmt":"2023-03-20T04:00:00","guid":{"rendered":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/?p=982"},"modified":"2023-03-19T17:33:14","modified_gmt":"2023-03-19T21:33:14","slug":"covid-19-and-emergency-powers-iv-the-wrap-up","status":"publish","type":"post","link":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/2023\/03\/20\/covid-19-and-emergency-powers-iv-the-wrap-up\/","title":{"rendered":"COVID-19 and Emergency Powers IV \u2013 The Wrap-Up"},"content":{"rendered":"\n

Three years ago tomorrow, March 21, 2020, NJ governor Philip Murphy issued Executive Order 107<\/a>, 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.<\/p>\n\n\n\n

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: \u201cI have the moral authority.\u201d NJ coronavirus: All Bergen County malls must close (northjersey.com)<\/a>. Because Tedesco\u2019s closure order was quickly subsumed by Governor Murphy\u2019s, the question of legal authority was never authoritatively tested.))) but justified on the basis of an emergency.1<\/a><\/sup><\/p>\n\n\n\n

My essential thesis is this: In the beginning the COVID-19 pandemic was an emergency<\/em> requiring urgent<\/em> 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<\/em> but is not urgent<\/em>. 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<\/a><\/sup> 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.)).<\/p>\n\n\n\n

The problem, as many governors and other wielders of executive authority saw it, was that the legislators would not pass the right<\/em> 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<\/a><\/sup> <\/p>\n\n\n\n

Recently the Washington Post<\/em> 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\/<\/a> (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<\/a>, and was published in the print by the Star-Ledger<\/em> 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\u2019<\/a>.)) 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.<\/p>\n\n\n\n

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<\/a>: “[The] purpose [of emergency powers] is to give pres\u00adid\u00adents a short-term boost in power in situ\u00adations that Congress cannot have fore\u00adseen (because they arise suddenly and without warn\u00ading) and that Congress is ill-suited to handle (because they require imme\u00addi\u00adate or highly nimble responses). Emer\u00adgency powers are not inten\u00added to address long\u00adstand\u00ading prob\u00adlems, no matter how seri\u00adous. Nor are they meant to author\u00adize perman\u00adent or long-term policy solu\u00adtions 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\u2019s More Important: Process or Substance?<\/a><\/em> almost two years ago, “While many might accept rule by an all wise and benevolent despot, remember the democracy is a process.”<\/p>\n\n\n\n

Jay Bohn<\/p>\n\n\n\n

March 20, 2021<\/p>\n

  1. I have previously been critical of the misuses of such powers: COVID-19 and Emergency Powers<\/a>; COVID-19 and Emergency Powers II \u2013 Not Much Has Changed<\/a>; COVID-19 and Emergency Powers III \u2013 Still Not Much Has Changed<\/a>; and The Misuse of Emergency Powers<\/a>. [↩<\/a>]<\/span><\/li>
  2. It is Time for Vaccine Passports<\/a> [↩<\/a>]<\/span><\/li>
  3. As I noted in\u00a0Superstorm Sandy, Ten Years Later: The State of Emergency Continues<\/a><\/em>, 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. [↩<\/a>]<\/span><\/li><\/ol>","protected":false},"excerpt":{"rendered":"

    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 … Continue reading “COVID-19 and Emergency Powers IV \u2013 The Wrap-Up”<\/span><\/a><\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[12,4,9],"tags":[],"class_list":["post-982","post","type-post","status-publish","format-standard","hentry","category-covid-19","category-government","category-journalism"],"_links":{"self":[{"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/posts\/982","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/comments?post=982"}],"version-history":[{"count":9,"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/posts\/982\/revisions"}],"predecessor-version":[{"id":993,"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/posts\/982\/revisions\/993"}],"wp:attachment":[{"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/media?parent=982"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/categories?post=982"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/bohn.org\/wpmocha\/peanutgallery\/wp-json\/wp\/v2\/tags?post=982"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}