Defang the governors

Regardless of how the Legislature’s lawsuit against the Evers administration, with arguments before the state Supreme Court scheduled for today, turns out (and never be optimistic about politics), no governor should the power to declare emergencies upon his or her whim without legislative approval.

Illinois state Sen. 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 limiting the movement of 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 Mr. Bailey. The rest of the state remains under lockdown by the 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 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 decisions of Michigan Gov. Gretchen Whitmer, who banned the sale of “nonessential” items such as furniture, carpeting and paint. That applied even in stores that were allowed to open. It remains unexplained how cherry picking what customers can and can’t buy at Home Depot limits the spread of coronavirus any better than, say, simply limiting the number of shoppers allowed in at any one time.

Here in Illinois, some of Gov. Pritzker’s limits on commerce can hardly be defended as “based in science.” Even under his latest Executive Order released Thursday, I can visit Target to buy furniture, Walmart to buy clothing or my grocery store to buy flowers. But I can’t go inside a furniture store, a clothing store or a florist, even though those stores could easily adopt the same safety measures required of the retail outlets permitted to stay open.

These arbitrary rules are inconvenient for the public, but more important, they crush the economic backbone of American communities—small business. Thousands, if not millions, of jobs may be lost nationwide because of some of the unchecked, myopic decision-making behind the total lockdowns.

The issue isn’t whether any particular governor is doing a good job during this unprecedented crisis. It’s that many governors have adopted a decision-making process that abandons one of America’s greatest strengths: diversity. The 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 legislative input in gubernatorial emergency declarations will surely result in more economic devastation and personal harm than is necessary to protect each other and defeat the virus.

Voters and legislatures alike are concerned about the exclusion of their voices from public affairs. 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 renewal of emergency powers after the initial 30-day state-of-emergency declaration. This would leave the governor able to respond quickly to an emergency, but require him to justify the sustained exercise of that authority by submitting it to the periodic examination and approval of elected legislators.

This is exactly the kind of oversight enacted in Oklahoma when the legislature approved Gov. Kevin Stitt’s initial emergency declaration in early April. While the legislature agreed to give the governor broad power to respond to the Covid-19 crisis, it inserted language requiring advance notice before the governor suspends state statutes or regulations, and vowed broad transparency before the public on such matters. The legislature also must reapprove the governor’s declaration every 30 days and can vote to suspend it at any time.

Involvement by state legislatures in a crisis provides a potent, necessary check on centralized emergency authority. Legislative agreement requires the broad approval that facilitates the best decision-making. Making sure emergency directives are clearly defensible and widely supported helps limit the disruptions of life and violations of liberty citizens are forced to endure.

Our system of checks and balances between the branches of government is a source of strength and vitality during normal times. It is especially vital during a long crisis when the cost of emergency action is so high for so many.

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