States & the Separation of Powers in Times of Emergency
Written by William Rice, Research Assistant, SALPAL
When most States initially adopted their respective Emergency Management laws, the idea of a months-long emergency may not have been in mind. Yet as COVID-19 cases continue to rise across the country, states of emergency remain in place as Governors exercise expansive powers delegated to them by their Legislatures. In these circumstances many questions abound: how much power is too much power for these Governors? Where does that power end? Who can or should check this power and how?
The Pennsylvania Supreme Court recently faced many of these questions in Wolf v. Scarnati et al. regarding attempts by the state’s Legislature to end the Governor’s Emergency Proclamation and all executive orders taken pursuant to it. Under Pennsylvania’s Emergency Management Services Code, the Governor is empowered to declare states of emergency and exercise broad authority, including issuing executive orders with the force of law. According to Section 7301(c) of the law, the General Assembly can end a state of emergency “by concurrent resolution” wherein “the Governor shall issue an executive order or proclamation ending” the state of emergency. Recently, the General Assembly passed such a concurrent resolution to end Pennsylvania’s state of emergency. In response, the Governor argued that the resolution must be presented to him for approval or veto. In support of this position, the Governor pointed to Article III, § 9 of the Pennsylvania Constitution, which requires “every order, resolution or vote, to which the concurrence of both Houses may be necessary” to be presented to the Governor before taking legal effect. The Governor’s veto, according to the constitution, can be overridden by a two-thirds vote by the General Assembly.
The Court sided with the Governor and used a saving construction to read the presentment process into the concurrent resolution text of Section 7301(c). Thus, as it currently stands, the Governor’s emergency declaration can only be ended by the Legislature in response to an executive veto through the exercise of a two-thirds supermajority vote.
For the dissent, authored by Chief Justice Saylor, such a system presents too much potential for abuse by an overpowered executive branch – in essence this leaves extraordinary authority in the hands of one person, upsetting the separation of powers. The process of a veto override, Saylor wrote, is much too onerous to effectively counter such expansive executive power. In Justice Saylor’s view not all delegations of authority between the legislative and executive branches are equal. Where the Legislature delegates extraordinary power, Saylor argues, what is required to counter potential abuse by the executive branch is a legislative veto: one in the form of a majority vote by the Legislature and one that is exempt from the presentment process.
The majority’s response to this idea is clear: a legislative veto here “might be a good idea” or “might be a bad idea” yet in Pennsylvania “it is not a constitutional idea.” However this raises the question whether, in fact, it would be a good idea for Pennsylvania or other states to constitutionally enshrine a legislative veto in regards to delegations of emergency powers to the executive branch.
The New Jersey State Supreme Court grappled with questions over the legislative veto in General Assembly v. Byrne, a case cited by the dissent in Wolf. In Byrne, the Court described the legislative veto as bestowing “excessive power both in making the laws and in enforcing them,” adding that “[n]o concentration of power offers greater potential for abuse” than this mechanism. The Court further quoted Alexander Hamilton’s view of the executive veto power as establishing “a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body.” These words seem especially prescient in an age of COVID-19-related conspiracy theories and denialism among many Americans, including major political figures. At the same time, pernicious “factions” can infect the executive branch just as well. So overpowering the executive branch over the legislative branch, or vice versa, doesn’t provide an easy answer to these concerns.
But perhaps the answer lies in a larger role for the branch of government little mentioned thus far – the judiciary. State Emergency Management laws, and constitutions if need be, could be amended to provide explicit mechanisms where the judiciary can be petitioned to make findings of fact or reasonableness as to the existence of a current or continuing state of emergency. Under this scheme, the Legislature would be able to end a state of emergency through the usual presentment process or through petitioning the judiciary. Localities could even be authorized to petition the judiciary under such a mechanism. Many state constitutions and laws provide a role for the judiciary as a mediator or counterbalance between executive and legislative powers – for instance, as presider over contested elections (in Pennsylvania, Pa. Const. Art. IV, § 17) or as arbiter over gridlock in the redistricting process (in New Jersey, N.J. Const. Art. II, § II (1)(d)(3)). To be sure, the judiciary is often reluctant to get involved in seemingly political disputes, and in fact we may rely on the branch too often to solve such inherently non-judicial issues.
Another option could be an independent commission, modeled off of those that certain States employ for their redistricting processes. That is, the Legislature could petition an independent commission, composed of professionals and experts in fields relevant to emergencies and emergency management, to determine whether a state of emergency still existed. This commission may be empowered to make such determinations of their own volition under certain conditions as well. For proper balance, however, the commission’s declaration could be overridden under certain circumstances by the executive or legislative branches. Such options could provide a means of escaping partisan battles that may more easily manifest within the executive, legislative, and judicial branches — although such commissions are certainly not completely immune to this phenomenon.
An administrative mechanism could also work, where an executive agency, officer, or panel is empowered as the entity capable of declaring and ending states of emergency. Proper executive and legislative checks would also need to be in place here (e.g., removal powers).
In the end, each State’s delegation of powers scheme during times of emergency must be examined on the merits of that State’s respective constitution and constitutional jurisprudence. In modifying future schemes, States should be wary both of overpowered executive authority and excessive legislative power. And as our nation’s laboratories of democracy, the States should look to and experiment with additional, novel ways of preventing dangerous concentrations of power while simultaneously maintaining effective, functional governments during times of crisis.