by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
I’m delighted to report that HB 264, “The Emerency Powers Accountability Act” has been placed on the House’s calendar for a reconciliation vote next week. If enacted, the bill would amend the Emerency Management Act is two important ways. It would give the General Assembly ultimate control over state-wide emergency declarations, and it would close an ambiguity in the current law that Governor Cooper has used to impose extreme lockdown orders without the concurrence of the Council of State.
The John Locke Foundation has been pointing out the need for these changes ever since Cooper imposed his first lockdown orders in the Spring of 2020. This resource page provides links to most of we’ve published on the topic, and this excerpt from an opinion piece that was published earlier this year sums up our position pretty well:
No individual should have the power to deprive so many people of so much liberty for such a long time. That’s why the North Carolina Constitution assigns the power to make legally enforceable rules of conduct to the General Assembly, 170 legislators representing both political parties and all regions of the state.
That doesn’t mean the General Assembly can’t make special arrangements to deal with emergencies. It can temporarily delegate some of its legislative power to the governor so he or she can act quickly during an emergency, and it did so when in enacted the Emergency Management Act (EMA). Still, to comply with the separation of powers requirement — and to prevent abuse — there must be an effective check on the exercise of delegated power, and the General Assembly must retain ultimate control.
In its present form, the EMA fails to provide either of those things. As Cooper’s lockdown has shown, it’s time to do something about it.
On its face, the EMA includes what appears to be a very effective check on emergency powers. It states that the governor may only exercise the most extreme forms of control — over things like the movement of people, the occupancy of buildings, and the operation of businesses — with the concurrence of the other nine statewide elected officials who are members of the Council of State.
But that’s not what happened with COVID-19. Once Gov. Cooper realized he wouldn’t get majority support, he found a loophole. Citing a different provision, one that allows the governor to assume powers delegated to local authorities if he or she determines that “local control is insufficient,” Cooper proceeded to issue a series of lockdown orders without even consulting the other members of the Council of State.
That’s why we’ve spent a year under lockdown with one man determining the fate of 10 million-plus North Carolinians. That must never happen again, no matter who sits in the governor’s mansion.
First, the Emergency Management Act should be clarified to ensure that, regardless of what he or she may determine about the sufficiency of local control, the governor may never impose extreme statewide measures without consulting other statewide elected officials and obtaining their concurrence.
Second, let’s confront the rule governing duration of emergency orders and the power to rescind them. Currently, the EMA provides that once the governor has declared an emergency, only he or she may rescind it, which means the General Assembly loses control. The EMA should be amended to impose a reasonable limit on the duration of declared emergencies and require the General Assembly’s approval for extensions.
Not every serious or dangerous problem constitutes an emergency. Only problems that happen suddenly or unexpectedly and require immediate action should qualify because only the need for immediate action justifies the delegation of emergency powers. With an ongoing, long-term problem like COVID-19, there’s no practical reason why the General Assembly cannot convene and enact appropriate legislation, and under the North Carolina Constitution, it has the right and duty to do so.
Of course it takes more than legislative approval to enact a law. The governor must sign it as well. Does Governor Cooper have the good sense and humilty to sign such a bill? We may soon find out.