by Jordan Roberts
Director of Government Affairs, John Locke Foundation
After a year of living under an emergency declaration implemented by Governor Roy Cooper, the North Carolina General Assembly has introduced two bills that would amend the Emergency Management Act (EMA) to limit the unilateral authority of the governor’s power during times of emergencies. From the beginning, Governor Cooper cited questionable legal authority that allowed him to impose sweeping statewide restrictions without the Council of State’s approval. Many believe that Cooper went too far in using ambiguous authority to make decisions on his own that impact the entire state. These new pieces of legislation attempt to clarify the authority the governor has and when the concurrence of the Council of State is required for him to act.
In this blog post, I will explain what the bills would do and the differences between them.
The first section of each bill defines “Concurrence of the Council of State” and the “Council of State (CoS).” Concerning the definition of “Concurrence of the CoS,” the House bill defines this as a majority of members agreeing to the declaration 48 hours after contact, while the Senate bill allows for seven days after contact with CoS. Both bills require all correspondence between the governor and the CoS to be public record. The Senate bill goes a little further in this section and says that those records must be made public before or at the same time as the exercise of authority. Both bills define a statewide emergency area to mean an area that is at least two-thirds of state counties.
The second section in each bill states that unless the Council of State concurs with the state of emergency applicable to a statewide emergency area, it ends after seven days, and emergency declarations can be extended only for 30 days at a time with the CoS concurrence. The House bill goes a little further than the Senate in this section by saying the governor cannot issue orders for the same area or a similar substance to what has failed to get CoS concurrence. The Senate bill does not have this language.
Next, both bills add limitations on what the governor can do under his section 19.30 “additional” powers. The Senate bill requires that the governor must 1) immediately notify local authorities 2) only gives the governor seven days to exercise this authority without CoS concurrence, and CoS concurrence can extend local control by the governor for only 30 days. The House bill adds similar limitations and requirements to the governor’s ability to exercise power under this section by requiring 1) immediate notification to local authorities 2) concurrence of the CoS 3) expiration of the declaration after seven days without CoS concurrence. Furthermore, the Senate bill requires that the governor release all correspondence with local authorities that formed the basis of taking local control to the CoS upon the exercising of power.
Changes to the EMA in the next section of each bill are identical. They deal with separating the authority between agency secretaries and local health directors on taking abatement action. The next section adds that the secretary of HHS may declare imminent hazards and call for abatement only with the notification of the governor and the concurrence of the CoS.
The final section in each bill is also identical. It says that any power exercised under a state of emergency pursuant to this bill that exists on the day the act becomes law would require the concurrence of the CoS. If no concurrence happens, the order expires after two days.
The changes in these two bills are important to ensure proper separation of powers during times of emergencies. Whoever is the governor during times of emergencies, Republican or Democrat, should not be able to exercise absolute authority. The EMA leaves ambiguous passages that allow the governor to evade the CoS concurrence, which provides a critical check on the executive’s power.