Supreme Court Justice Antonin Scalia often noted that the primary safeguard of our constitutional liberties is the structure of our government. Every banana republic has a bill of rights, he once said, but the strength of the American system is the separation of powers.
At the federal level, there are three separate, co-equal branches of government that must operate together for our representative republic to function properly, and this balance of power is mirrored at the state level. Unhappily, our system today is not functioning as designed.
Since March, the separation of powers has been off-kilter, shifted disproportionately to state executives, who are ruling outside the boundaries of their proper authority. In a moment of national panic, Americans permitted their state and local executives to take power—to declare states of emergency and to implement lockdowns—and now those executives won’t give that power back.
Legally, the executives are operating pursuant to their “emergency powers.” Executives are often authorized to declare a state of emergency, which activates emergency plans that the state and its localities have prepared, and transfers significant control to the governor. Although it varies by state, this authority is typically quite broad.
If you examine any of the lockdown or mandatory masking orders, you will largely see a relatively formulaic approach. First, the edict will recite the facts that support the claim there is an ongoing catastrophe, then it will list the legal authority, and finally the resulting mandates.
For example, in Virginia, when Gov. Ralph Northam issued his masking order, he called upon the powers vested in him by Article V of the Virginia Constitution, then pointed to § 44-146.17 of the Virginia Code. That’s the meat of the matter. That section of the code spells out the scope of the state executive’s authority during an emergency.
Every state legislature can define these powers differently and include specific limitations. In Virginia, the legislature inserted a provision that no emergency action by the governor could “limit or prohibit” the right to keep and bear arms.
That is why a gun range in Virginia was able to sue earlier this year and win an injunction that permitted it to reopen during the height of the lockdown. Although the judge said the injunction did not apply across the commonwealth, that discrete win signaled to Northam that he had gone too far, and he quickly issued a new order allowing all gun ranges to reopen.
Most state statutes automatically terminate emergency authority after a 30- or 60-day period, unless specifically extended by the governor. This highlights that emergencies are assumed to be of short duration. Our current quandary is that governors are using COVID as an excuse to extend their authority indefinitely.
If the governors are empowered to declare and continue a state of emergency, what is the remedy? The Founders believed the first and most powerful check on the executive would be the ballot box. In modern practice, one of the best checks on the individual policies an executive contemplates has been the resistance of the electorate in real-time. The coronavirus crisis has once again proved that state and local races matter deeply.
The judgment of the electorate, though, is usually most potent as a prophylactic or an immediate reprimand. Once the executive has taken the power and the people have acquiesced, it requires a much more forceful and unified resistance to roll back the overreach. Unfortunately, in our current crisis, the necessary momentum is just not there—or not yet sufficiently organized and vocal.
A structural check on the executive is the intervention of a coordinate branch of government—the balance of powers working as designed. Most state statutes provide for the termination of the emergency either by executive order or joint resolution of the legislature.
To declare emergencies, to close businesses and confine Americans to their homes, to mandate masks, to limit access to churches, to suspend your civil liberties, the governors point to power enumerated by statute—that is, defined by the legislature. Where the legislature defined the terms, it can redefine the terms. Where they are empowered to do so, state legislatures must begin to declare the emergency at an end, rebuke the governors’ power grabs, and recalibrate the allocation of power to its proper balance among the branches.
Unfortunately, rather than reclaiming authority from governors, many state legislatures right now are fighting over which branch gets to decide how to spend the federal dollars states are receiving in emergency aid. It is not clear that the balance of power will naturally revert to normal any time soon.
These states of emergency have provided vast, new power to individual governors and various political factions, and they will not give that power up easily or soon. It must be formally taken from them. If it is not, the executives will continue to chip away at our fundamental liberties, implement initiatives the electorate would not condone via their representatives, and generally undermine the spirit of independence and self-reliance that are hallmarks of American liberty.
An executive’s emergency authority is a good thing when properly exercised. An executive’s ability to move swiftly in a time of crisis is a strength of our system. The Founders robustly debated the extent and contours of executive powers.
The executive’s speed and dispatch are indispensable in the realm of war and national security, but these traits are also critical in time of national emergency. However, as the Framers knew and we’ve experienced, this type of centralized authority is also very dangerous when abused.
The American system of government is comprised of three branches of government that must operate together for our system to work. When exercised, the “emergency power” of the executive fundamentally changes the nature of our government by sweeping authority from the other branches and placing it in one.
The current widespread and indefinite “emergency rule” is doing violence to our system of self-government and to the separation of powers—which is the real defense that preserves our rights. It is high time to end the tyranny of the executives. ✪