As COVID wanes, state legislatures are limiting governors' emergency powers. Why it matters
The biggest public health disaster in a hundred years is winding down, but the fight over emergency powers given to governors during the COVID-19 pandemic is escalating throughout nearly every state government in the country.
Lawmakers in 46 states, Guam and Puerto Rico have drafted 300 proposals this year to curtail their governors' executive powers, as legislative and executive branches fight for authority over school and business closures, mask orders and more.
Almost all of the measures seek to install permanent restrictions on governors' powers that were handed to them in the first months of the virus' spread as states scrambled to address the health emergency.
Now, states may change the unilateral authority many governors were given, putting more control and checks and balances with their legislative branches.
Before the pandemic, governors used emergency powers in a limited way, often regionally to address a specific weather disaster. The COVID-19 crisis changed that, and governors across the country installed sweeping executive orders that closed down most of their states.
"Right from the start, there was a big philosophical difference between Democrats who wanted to keep things closed to protect public health and Republicans who wanted to reopen everything to protect the economy," said Terry Madonna, senior fellow for political affairs at Millersville University.
But it wasn't just partisan politics. Lawmakers across the country were being pressured by voters, including those who staged armed protests in state capitals.
The turmoil across the country have sparked debates about the balance of government power, according to Pam Greenberg, a policy researcher at the National Conference of State Legislatures.
"Although governors need to be able to respond to emergencies quickly, legislatures have an important role in making sure these powers are not abused," she said.
In most cases, Republican-controlled legislatures are moving to limit the power of Democratic governors, such as in Pennsylvania, Louisiana, Kentucky and North Carolina.
But it's not just opposing parties.
Republican legislatures are also seeking to restrict Republican governors, which is happening in Ohio. And Democratic legislatures have moved to limit Democratic governors, including in New York.
Some have taken the fight to the ballot box.
Pennsylvania became the first state to vote on and pass restrictions on gubernatorial power, when a little more than half of primary voters May 18 chose to give lawmakers more of a say in disaster declarations.
The vote limited the Pennsylvania governor's disaster declaration to 21 days. Beyond that, legislative approval is required. Pennsylvanians also voted to empower state lawmakers to remove the governor's disaster declarations with a majority vote.
Republicans in Pennsylvania got the measures on the ballot in opposition to orders issued by Democratic Gov. Tom Wolf, and the GOP was successful in the swing state.
Starting in March 2020, Wolf gradually closed areas of the state down and slowly reopened. A week ago, he ended all restrictions other than the mask order, which falls under the state health secretary's domain.
In a joint statement, Senate President Pro Tempore Jake Corman, R-Centre County, and Senate Majority Leader Kim Ward, R-Westmoreland County, said the primary results prove government works better when the branches work together.
"This decision by the people is not about taking power away from any one branch of government, rather it's about re-establishing the balance of power between three equal branches of government as guaranteed by the constitution," their statement said.
About two dozen other states are considering similar changes, which are in line with directives from the American Legislative Exchange Council, a caucus of conservative state lawmakers.
Only four states have not pursued legislation to curb emergency powers: Alaska, Maine, South Dakota and Vermont. Executive powers in those states are already limited.
Pa. primary results:Voters choose to strip governor's emergency powers
A constitutional fight in Kentucky
The Republican supermajority of the Kentucky General Assembly moved quickly to strip Democratic Gov. Andy Beshear of emergency powers once the 2021 legislative session began in January, following months or criticism and a failed lawsuit to strike down his COVID-19 restrictions.
In the first week, they passed bills forcing the governor’s emergency orders and regulations to expire after 30 days unless ratified by the legislature, in addition to a bill allowing businesses and other organizations to remain open in defiance of those orders, so long as they complied with CDC guidance.
One of the bills included a provision requiring the governor to first obtain the approval of Republican Attorney General Daniel Cameron when suspending a statute under an emergency, who has battled Beshear in court over his restrictions.
The legislature quickly overrode Beshear’s vetoes of three bills, though the governor sued and a judge issued a temporary injunction blocking them from going into effect, citing the public health crisis they could create.
Beshear recently announced that nearly all of his mask mandates and capacity restrictions will expire on June 11 — the day after the Kentucky Supreme Court is scheduled to hear oral arguments in a case finally determining the constitutionality of the governor’s orders and the legislation limiting them.
A fight against 'unchecked power' in Louisiana
In Louisiana, a bill is advancing through the Republican-controlled Legislature that would weaken the emergency powers of Gov. John Bel Edwards, the only Democratic governor in the Deep South.
The measure by Republican state Rep. Larry Frieman would allow lawmakers to rollback all or parts of a governor’s public health emergency restrictions from mask requirements to capacity limits.
“Gov. Edwards has had unfettered and unchecked power,” Frieman said. “This gives the Legislature a seat at the table and balances the power.”
It has secured passage by the full House and cleared its first Senate committee hearing, but Edwards vetoed a similar bill last fall, saying it didn’t “represent a serious approach to responding to a public health emergency.”
The same fate awaits Frieman’s bill if it makes it to the governor’s desk.
Edwards removed virtually all of his COVID-19 restrictions on May 26, but kept the public health emergency in place.
A fight against 'unchecked authority' in North Carolina
Despite polls showing Roy Cooper receiving good marks from both Democrats and Republicans on his handling of the pandemic, the Democratic governor of North Carolina hasn’t been immune from efforts to rein in his emergency powers.
Republicans, who dominate both chambers of the General Assembly, are pushing a bill that would require any emergency declaration to be approved by the Council of State, which consists of 10 statewide elected officers, including the attorney general and lieutenant governor, within 10 days.
“No single person should have unchecked authority to wield emergency powers for an indefinite period of time. It's inconsistent with the basic idea of a representative democracy," said state Sen. Bill Rabon, chair of the Senate’s Rules Committee.
Cooper, not surprisingly, takes a dim view of the proposed move to limit his powers.
“The governor will review the bill but is concerned about legislation that could make it difficult to quickly and effectively respond in an emergency,” spokesman Ford Porter said.
Lawmakers already have tried unsuccessfully to overturn portions of Cooper’s orders. Last July, the governor vetoed a bill similar to the current one, and it isn’t likely Republicans could muster enough votes to overturn another Cooper veto.
A Republican fight in Ohio and Florida
Less than two months after Ohio’s Republican governor announced a series of emergency health orders, members of his own party started working to roll them back.
Republicans in the House and Senate introduced multiple bills throughout 2020 to give state lawmakers the power to modify or repeal health orders, require written consent for contact tracing and limit the fines for businesses caught breaking the new COVID-19 rules.
Gov. Mike DeWine defeated all of them.
He said they “jeopardized the safety of every Ohioan,” and Democrats agreed.
But their luck ran out in 2021. The Ohio Legislature overrode the governor's veto and passed a sweeping health order bill in March, giving lawmakers the authority to reject or modify any state health order and requiring DeWine to wait at least 30 days before reintroducing something similar.
The bill is set to take effect June 23, but it won’t have much of an impact – at least in the short-term – because DeWine has already lifted most of Ohio's health orders.
GOP supporters of the law said they weren’t trying to single out DeWine specifically. The point was to create "necessary checks and balances" to executive power going forward.
Florida Gov. Ron DeSantis in May signed into law a bill, SB 2006, that did a number of things to restrict state and local government from closing businesses and schools except in the event of a hurricane.
For instance, it caps local emergency orders at a total of 42 days. Such orders can be issued weekly to a total of six weeks.
The new law also gives the governor the authority to invalidate a local emergency order if he thinks it unnecessarily restricts the rights and liberties of individuals.
The legislation does address the governor's powers, allowing executive orders to be issued for up to 60 days and renewed for as long as “emergency conditions persist.”
But that's basically no change to what’s in current law.
It does, however, require that if the governor closes schools or businesses, specific reasons must be given why they need to close and those closures need to be reassessed regularly.
Lifting restrictions:Ohio will lift mask mandate, all COVID-19 health orders June 2
New York Dems move to curb Cuomo's power
In New York, embattled Gov. Andrew Cuomo had his COVID powers curtailed by members of his own party in March.
Cuomo is accused of underreporting COVID deaths in nursing homes last year, prompting lawmakers to enact new emergency pandemic restrictions. Cuomo begrudgingly signed the measures into law.
The new provisions, however, permitted existing directives, such as mask wearing and social distancing, to continue unabated for at least 30 days, with options for the governor to modify or extend them further if he provides advanced notice to state legislative leaders and relevant local officials.
“I think everyone understands where we were back in March and where we are now,” Senate Majority Leader Andrea Stewart-Cousins, D-Yonkers, said in a statement at the time.
Other states simply recognized that as COVID rates drop, it is time to modify their governors' powers.
On Friday in New Jersey, Gov. Phil Murphy signed a bill into law to end the state's public health emergency, giving the Democratic governor the authority to continue 14 executive orders through Jan. 1, such as keeping a moratorium on evictions and utility shutoffs.
But the Democratic-led Legislature will scrap dozens of other orders in 30 days.
"Today, we take a substantial step toward restoring normalcy to our state and to the lives of those who call New Jersey home," Murphy and legislative leaders said in a joint statement.
Several state lawmakers have proposed legislation to restrict their governor's emergency power that has already failed or is unlikely to advance.
That includes Delaware, where Republicans have unsuccessfully tried to limit Democratic Gov. John Carney's executive powers.
A bill filed there in January doesn’t appear to have enough votes to make it out of committee and is unlikely to make it far in a statehouse where Democrats control three-fifths of both chambers.
No Democrats have signed onto the bill, and it’s unclear how Republicans plan to convince Carney to sign it into law, should lawmakers somehow pass it.
South Carolina lawmakers in the most recent legislative session tried to assert more leverage over the governor's issuance of emergency orders, but the Senate didn't consider a bill passed by the House.
Gov. Henry McMaster has issued 30 emergency declarations related to the COVID-19 pandemic since March 13, 2020, the most recent being May 22.
In Texas, a bill that would curb Gov. Greg Abbott’s pandemic powers passed in the Texas House, but did not gain enough approval in the full legislature.
Under House Bill 3, the governor still would have the ability to suspend state laws and trump decisions by local officials, which kept some Democrats from supporting it.
Austin Mayor Steve Adler blasted the bill, which he said jeopardizes local authority to enact public health protections.
"HB 3 would add an unneeded level of bureaucracy and put at risk the ability for cities to respond in a locally meaningful way," he said.
Includes reporting from USA TODAY Network reporters: Nicole Cobler, Sarah Gamard, Greg Hilburn, John Kennedy, Bob Montgomery, Jeffrey Schweers, Joe Sonka, Joseph Spector and Anna Staver.
Candy Woodall is a reporter for the USA TODAY Network Pennsylvania Capital Bureau. She can be reached at 717-480-1783 or on Twitter at @candynotcandace.