Reining in Emergency Powers
In my June 2021 article for Reason, “Economic Lessons from COVID-19,” I ended with this:
Recall, though, an earlier anti-liberty episode that was not nearly as shocking as the lockdowns. In 2005’s Kelo v. New London, the U.S. Supreme Court gave its blessing to a city government’s use of eminent domain to expropriate property from homeowners and transfer it to a private entity, the New London Development Corporation. This sent shockwaves through the country. The Institute for Justice, which represented the losing side before the Supreme Court, has noted that the decision “sparked a nation-wide backlash against eminent domain abuse, leading eight state supreme courts and 43 state legislatures to strengthen protections for property rights.”
Could we see a similar response to the lockdowns? Already there have been some moves at the state level to limit governors’ lockdown powers. A bill that passed both the House and the Senate in Ohio would have limited the Ohio Department of Health’s power to quarantine and isolate people, restricting it to only those who were directly exposed to COVID-19 or diagnosed with the disease. Similarly, in Michigan, the Senate and House passed a bill to repeal a 1945 law that Gov. Gretchen Whitmer had used to impose the state’s rather extreme lockdowns. Both bills were vetoed, but I doubt that will be the end of the story.
Even if it doesn’t happen until this particular pandemic is over, there’s good reason to believe that some state legislatures will want a say in future decisions. Whatever the case for letting governors move so quickly early last year, that case gets weaker and weaker the longer the lockdowns last. At some point, legislators just might roll back those powers. Or so we can hope.
Coming in June, my prediction might sound less impressive than it was: I wrote those paragraphs in January 2021 and there was a longer lag to publication than usual.
Since then, some of the things I predicted and hoped for have come, and are coming, about. Here’s Reason writer Eric Boehm in “The Lockdown Showdown,” Reason, February 2022.
Many state legislatures grappled with that issue in 2021, as more than 300 measures to limit governors’ unilateral emergency powers were proposed in 45 states. Such measures have been approved in at least a dozen states—including Pennsylvania, where lawmakers and the state’s voters approved a pair of constitutional amendments restricting emergency powers. Those laws, in turn, have sparked opposition from governors’ offices and from the public health community, which overwhelmingly backed 2020’s harsh lockdowns.
Later in the piece, Boehm writes:
According to a Kaiser Health News report published in mid-September, legislators in at least 26 states had passed laws to limit public health decrees since the start of the pandemic. That count includes rules limiting governors’ executive power, but it also includes states where lawmakers have exercised arguably excessive powers themselves by banning private businesses from imposing mask or vaccine mandates on employees and customers.
Boehm also reports good news on Kentucky:
To restore balance, state lawmakers in Kentucky passed what is so far the most aggressive limitation on gubernatorial emergency powers since the pandemic began. A three-bill package initially passed in January 2021 caps emergency declarations at 30 days and requires legislative consent—which can subsequently be revoked at any time—for an extension. The bills also prohibit the governor and attorney general from suspending state laws during an emergency and forbid emergency declarations that impinge on the right to worship or protest. Once an emergency declaration expires or is ended, a “substantially similar” one cannot be issued for 90 days.
[Governor] Beshear vetoed the bills, but the state legislature overrode his veto in mid-February. A state district court issued an injunction against the new laws after Beshear argued that they would undermine Kentucky’s response to the pandemic and cause avoidable deaths. But the Kentucky Supreme Court overturned that injunction in September and told the district court to rehear the case on the merits. While that legal back-and-forth was playing out, the state legislature agreed to extend Beshear’s emergency pandemic powers until June 21, after which they were terminated.
“The Supreme Court has confirmed what the General Assembly has asserted throughout this case—the legislature is the only body with the constitutional authority to enact laws,” House Speaker David Osborne and Senate President Robert Stivers, both Republicans, said in a joint statement on August 21, shortly after the state Supreme Court blocked the injunction against the law.
Read Boehm’s whole article, though. Besides the issue I highlighted, it’s incredibly illuminating about how many governors and public health bureaucrats hate to have their powers reined in. And the governor of Washington state takes the prize for having what Friedrich Hayek called the “fatal conceit.” Boehm writes:
During an October interview with a local TV station, Washington’s Democratic governor, Jay Inslee, provided a perfect example of the problems with the top-down approach that public health authorities have championed. More than a year and a half after the pandemic began, people have figured out their own strategies for managing risk and coping with the disease. But Inslee sees it differently: “There is only one person in the state of Washington who has the capability to save those lives right now, and it happens to be the governor of the state of Washington,” he said.