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State legislatures limit the emergency powers of governors. But only some of them.

Indiana Governor Eric Holcomb last week vetoed a bill that would limit the power of governors to declare emergencies.

The bill would allow the General Assembly to convene in emergency session, with the idea that the legislature could then vote to end, or otherwise limit, a governor’s emergency powers. Although both the legislature and the governor’s office are controlled by Republicans, the legislature has apparently grown weary of the governor’s repeated renewals of the state’s emergency status in the name of dealing with the of the covid virus. 19.

The legislator could always overrule the veto. In Indiana, a waiver only requires a majority vote.

If the legislature does, it won’t be the first state to override a governor’s veto on this front. Last month, the Republican-led Ohio legislature voted to overturn Republican Mike DeWine’s veto on Senate Bill 22, which gives lawmakers the power to overturn all health orders for governors who last more than thirty days. The bill also creates a legislative oversight committee.

These two states, however, offer only a small sample of what state lawmakers planned in the 2021 legislative session. In fact, lawmakers in 45 states have proposed more than three hundred measures this year to extend legislative control over the emergency powers of governors.

Ironically, in many states, covid-19 closures – which many governors primarily used to turn their state governments into institutions of one-man rule and rule by decree – can end up precipitating a widespread movement to limit the executive powers in state governments. The fact that a large number of residents of New York, Ohio and California are seemingly fed up with their governors may be a harbinger for the future.

We can only hope so, because this is a long overdue .

States have long broadened the administrative powers of governors and extended their terms of office. So now we have a nation filled with politically and administratively powerful state governors who think it’s perfectly reasonable to declare a one-year state of emergency, to shut down businesses at the of a gun. and ordering law-abiding citizens to stay in their . In many states, legislatures could do little did do little.

In response to any effort to reduce their powers, governors will naturally protest, claiming – as Mike DeWine did – that limiting the powers of governors would upset the “balance of power” or otherwise pose a threat to public safety. No legislator should fall into this trick. It is high time that governors were brought under control and stripped of the many powers that rulers of yesteryear could only dream of wielding. Just as executive power at the federal level is one of the most serious dangers the American regime can pose, so it is at the state level.

State lawmakers begin to curb governors

The idea that governors should be given emergency powers has long been based on the assumption that these powers are limited in time and scope.

Covid-19 business closures, mask orders, and stay-at-home orders, on the other hand, have made it clear that state governors will enthusiastically embrace emergency orders that last for months on end. freely renewing their emergency powers again and again and again. Additionally, governors wielded power in an arbitrary fashion, often apparently deciding to implement closures on a whim, with no established metrics for the number of deaths or covid infections that would trigger more business closures. . Governors have handed over public health decisions to unelected bureaucrats who often meet in secret and without public accountability.

It seems that many lawmakers have learned something from this experience.

According to the AP:

About half of [the 45 states considering bills to limit governors’ powers] are considering significant changes, such as stricter limits on the duration of emergency orders from governors without legislative ….

While the repulsion comes mostly from Republican lawmakers, it’s not entirely partisan.

Republican lawmakers have sought to limit the power of Democratic governors in states such as Kansas, Kentucky, and North Carolina. But they have also sought to curb fellow Republican governors in states like Arkansas, Idaho, Indiana and Ohio. Some Democratic lawmakers have also pushed back on their own party governors, including limiting the ability of struggling New York Gov. Andrew Cuomo to issue new terms.

In Ohio, new legislation that will limit DeWine’s power “ also explicitly limits the power of local health officials to require people to self-quarantine or self-isolate without a specific medical diagnosis and allows Ohio residents to sue the constitutionality of any state emergency orders in their . county.”

Efforts to limit the powers of governors are not limited to legislative action. The state supreme courts of Wisconsin and Michigan have both issued rulings limiting the powers of governors, and a recall election meant to end Gavin Newsom’s lockdown fetish is – so far – in the works.

However, most efforts to limit the power of governors will likely have to be done at the legislative level. Federal courts have made it clear that they do not want to do much to limit emergency powers, and state supreme courts have also been shown to be generally unresponsive.

A long trend towards increasing the powers of governors

However, if legislatures decided to limit the powers of the governor, it would only be a small reversal in a long and established trend of increasing governorship.

In the early years of the United States, state governors were completely limited by legislatures. In many cases, governors were appointed by the legislatures themselves and terms lasted one or two years. Although states then moved towards popular election of governors – thus making them more independent of legislatures – legislatures also attempted to reduce the administrative power of the governor by making more offices elected rather than appointed by the governor.

Thus, during the first half of the 19th century, until around 1850,

the governor’s power of appointment, and therefore his control of the administration, was at its lowest . The general result of development up to this time made the governor’s position less important than at the beginning; and its legislative authority was more important than its administrative authority.

This changed during the second half of the century, however, and in a long analysis of 1912 for the Michigan Law Review, John Fairlie concluded:

In the period following 1850, the position of state governor was strengthened to a notable extent, not so much by changes in state constitutions, but by the expansion of the administration of the state. State and a considerable increase in the power of governor appointment conferred by law. . Many new state offices, councils and commissions have been created; and these positions have been filled on a proposal from the governor, usually with the consent of the Senate. This increase in the power of appointment strengthened the governor’s control over state administration; and increased administrative control added to the governor’s influence in other directions…. The overall result has been to emphatically emphasize the importance of the governor’s office; although his authority is still much lower than that of the President of the United States.

In other words, the increase in the number of agencies and administrative offices constitutes a de facto increase in the power of a governor. Coupled with new opportunities to appoint political to bureaucratic positions, the effect is indeed considerable.

It is also remarkable that Fairlie’s lyrics were written in 1912. It goes without saying that the administrative power of governors, exercised through appointed bureaucrats, has not exactly been reduced since 1912. Moreover, during Over the past century, the number of state governors with four-year terms instead of two years has almost doubled, further increasing the independence of governors vis-à-vis voters and the legislature.

Unfortunately, limiting the power of government will do nothing to directly limit the federal power or the broad executive power of the US president, which eclipses that of the states. This is part of the reason why Americans largely ignore their state governors and offices. They have, until recently, seemed relatively invisible. Yet the Covid-19 lockdowns have unexpectedly highlighted the fact that governors in fact wield immense power over the day-to-day lives of Americans, and many do so in aggressive and arbitrary ways. Now is the perfect time to strip these governors of more of their widely abused power.


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