The Wall Street Journal has published a commentary by Senator Dan McConchie (R-Hawthorn Woods) that outlines the lack of legislative oversight of gubernatorial emergency proclamations both in Illinois as well as in many other states. He calls for changes to help restore the balance of power between the branches of government.
Limit Governors’ Emergency Powers
Residents and business owners want lockdown relief, but few legislatures have any way to intervene.
By Dan McConchie
As governors across the country destroy their states’ economies in the name of public health, there is shockingly little oversight of their actions.
In my state of Illinois, Gov. J.B. Pritzker has locked down the state, closing swaths of commerce and the movement of individual citizens in response to Covid-19. These actions have been challenged in court by my colleague, state Rep. Darren Bailey, and a judge initially agreed to a temporary restraining order on the governor’s emergency measure, but only as they apply to Rep. Bailey. The rest of the state remains under lockdown by governor’s orders, which continue without oversight.
Normally, the three coequal branches of government impose checks and balances to ensure accountability. Power is divided to allow recourse if one branch grows too intrusive or authoritarian. And while many people have sued governors in recent weeks to demand judicial redress, the judicial branch is reactive in nature, usually declining to disrupt legally plausible actions during a crisis. The legislative branch is a far better source of timely restraint.
Yet in 41 states there is little or no legislative input on gubernatorial state-of-emergency proclamations. Half of those legislatures lack the ability to block any exercise of a governor’s power when done in the name of an emergency. That leaves elected representatives unable to defend their constituents against executive overreach.
While virtually all governors have issued a state of emergency limiting commerce or freedom of movement, only two states, Georgia and Oklahoma, require any affirmative action of the legislature to approve the governor’s initial declaration. Seven others require legislative approval of subsequent extensions after an initial emergency declaration expires. Twenty-two have neither of these powers, though the legislature may nullify an emergency declaration once made.
That leaves 19 states, including Illinois, where an emergency declaration that closes private business, restricts commerce and limits the free movement of residents has no limits at all.
Consider the questionable decision by Michigan’s governor, Gretchen Whitmer, who banned the sale of “nonessential items” such as furniture, carpeting and paint. This was true even in stores that remained open. The governor unilaterally deemed certain items off limits while declaring others acceptable for purchase. It remains unexplained why a visit to the paint aisle at The Home Depot is inherently more dangerous than a visit to the plumbing aisle.
Here in Illinois, some of Governor J.B Pritzker’s limits on commerce can hardly be defended as “based in science.” I can visit Target and buy furniture, Walmart and buy clothing, or my grocery store and buy flowers. But I can’t visit a furniture store, a clothing store or a florist regardless of whether those businesses are able to operate according to the safety standards public health officials have outlined for retail outlets.
While the burden of such arbitrary rules is inconvenient for the public, it is crushing for the economic backbone of American communities—small business. Thousands, if not millions, of jobs and businesses nationwide may be lost due to the myopic decision-making that tends to happen when power is concentrated in the hands of the few.
The issue is not whether any particular governor is doing a good job during this unprecedented crisis. The issue is that many governors are embracing a decision-making process that abandons one of our greatest strengths: diversity. Our American system of government has led to the greatest creation of wealth and personal freedom in history because qualitatively better decision-making naturally results when disparate viewpoints are empowered at the governing table. The lack of input from legislative oversight over gubernatorial emergency declarations will most assuredly result in more economic devastation and personal harm than is necessary to protect each other and defeat the virus.
Voters and legislatures alike are expressing concern over the absence of their voices in the affairs of their state. Despite many legislatures not being in session due to the pandemic, states such as Delaware, Kentucky, Michigan, Pennsylvania and Utah have introduced bills to curb gubernatorial authority regarding their emergency declarations. In the Illinois Senate, I have introduced a bill to require legislative authorization for subsequent renewal of emergency powers after the initial 30-day state of emergency declaration. This would grant the governor the ability to quickly respond to an emergency but require him or her to justify the exercise of an undemocratic level of authority, submitting it to the periodic examination and approval by duly elected legislators.
This is exactly the kind of oversight enacted in Oklahoma when the legislature approved Governor Kevin Stitt’s initial emergency declaration in early April. While the legislature agreed to give the governor broad powers to respond to the COVID-19 crisis, they inserted language requiring advance notice before the governor suspends any state statutes or regulations and vowed broad transparency on such matters to the public. Additionally, the legislature has to re-approve the governor’s declaration every 30 days and can vote to suspend it at any time.
Involvement by state legislatures in an ongoing crisis provides an important and necessary check on a centralized emergency authority. Legislative agreement requires the broad, diverse approval that facilitates the best decision-making. Making emergency directives clearly defensible and broadly supported helps limit the extent of the disruptions of life and violations of liberty endured by citizens in a crisis.
Our check and balance system between the branches of government is a source of strength and vitality during normal times. It is especially vital during a prolonged crisis when the cost of emergency action is so high for so many.
This article has been reprinted by permission of the Wall Street Journal.
The original posting can be found here.
The editorial references many aspects to state laws around the country. Here is the research upon which the article relied.