Other voices: How long should governor have emergency powers?

Published 12:00 am Wednesday, January 27, 2021

In 2018, The News & Observer’s veteran political writer, Rob Christensen, gave this colorful version of the institutional power — or lack thereof — of North Carolina’s office of governor: “The Tar Heel State has long had one of the constitutionally weakest governors in the country. If California had muscle-man Arnold Schwarzenegger as governor, the appropriate actors to audition for North Carolina governor might be Pee Wee Herman, Sheldon Cooper, or Woody Allen.”

Not anymore. While the pandemic has stressed the state, the nation and the world, it has empowered governors. In North Carolina, it has transformed Gov. Roy Cooper from a Sheldon Cooper into a Gary Cooper – a marshal facing down COVID-19 in an epidemiological version of “High Noon.”

Since declaring a state of emergency in March, the governor has been able to dictate what businesses are open and how schools should operate. He has suspended evictions and imposed curfews. He’s mandated mask wearing.

Not surprisingly, leaders of the Republican-controlled legislature have been chafing at the sweeping powers taken up by the Democratic governor. One of their priorities in this year’s session will be to limit how long and how broadly a governor can exercise emergency powers.

“It’s not something that we have discussed and settled on a bill or anything of that nature. But I do think the Governor’s exercise of emergency powers is inconsistent with what our system of government would expect,” state Senate leader Phil Berger said after the legislative session opened on Wednesday. “I would like to see some changes.”

That’s hardly a new sentiment from Berger. Republican lawmakers have tried to limit Cooper’s powers since he was elected in 2016, an effort mostly rejected by the courts. And almost all Republican attempts to reverse executive orders with legislation have been felled by Cooper’s vetoes.

But now the General Assembly’s parochial rivalry with the executive has been joined by national concerns about how long emergency powers should supersede the standard checks and balances of democracy.

Cooper argues that what matters isn’t the duration of the emergency, but the reality of it. While the pandemic has gone on much longer than other emergencies – storms or unrest – it remains a daily threat that requires centralized leadership and rapid decision making. Cooper spokesman Ford Porter said, “It’s important that the state be able to act quickly and decisively during a crisis.”

We agree with the logic of Cooper’s position, but there is merit to the Republican objections.

Elizabeth Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security Program, said she’s ambivalent about limiting emergency powers, especially because many legislatures have been “playing partisan games” with a public health issue. But she said, “It makes sense in theory to limit emergency powers to a short period of time and once the legislature has had time to grapple with the situation, the proper role goes back to the legislature.”

It’s not practical, as some Republicans have asked, that the 10-member Council of State consisting of all the statewide elected officials determine how the state should proceed in an extended emergency. Given the partisan split of the council – it’s now 6-4 in favor of Republicans – and the clumsiness of committees, rule by the Council of State could become an emergency within an emergency.

Nonetheless, the governor shouldn’t insist on open-ended emergency powers. After a fixed period set by statute, the legislature should to be able to end or modify those powers. In many states, the governor’s emergency powers are limited to a fixed period or subject to being ended by the legislature at any time.

This isn’t a partisan matter of Cooper versus the Republicans. Cooper has done a fine job of exercising his emergency powers, especially given the Republicans’ often reflexive resistance. But a future governor may exercise such powers recklessly or incompetently. That’s when North Carolinians facing an extended emergency will be grateful for a law that sets limits and requires accountability.

— Raleigh News & Observer and Charlotte Observer

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