Emergency Powers Resource Page

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Two issues that dominated 2020 are now continuing into 2021: the spread of COVID-19 and the government’s response.

Here in North Carolina, Gov. Roy Cooper won re-election despite what many believe to be his unlawful and unjustified exercises of “emergency powers” in response to the coronavirus.

The John Locke Foundation continues to lead the objections to Cooper’s unilateral declarations of business shutdowns, business and personal restrictions, mask mandates, and curfews under a highly questionable interpretation of the state’s Emergency Management Act – an act that legislators should amend in 2021.

Unchecked power should be combatted regardless of who is in charge.

This resource page will serve as your one-stop source to learn more about Cooper’s abuse of emergency powers, how the Emergency Management Act should be improved, and just how flimsy Cooper’s “public health” justifications to exercise his runaway power are.

What is the Emergency Management Act?

The North Carolina Emergency Management Act can be found in Article 1A in chapter 166A of North Carolina’s state statutes.

Section 166A-19.10 of the North Carolina General Statutes lists the powers specifically delegated to the governor in a declared emergency. Nothing on that list comes close to giving him the power to shut down businesses or force people to shelter at home. Section 166A-19.30 gives the governor a broad range of additional powers, including the power “To perform and exercise such other functions, powers, and duties as are necessary to promote and secure the safety and protection of the civilian population.”

Significantly, however, the act states that the governor may exercise those additional powers only “with the concurrence of the Council of State,” a body of 10 elected officials that includes the governor, lieutenant governor, secretary of state, auditor, treasurer, superintendent of public instruction, attorney general, commissioner of agriculture, commissioner of labor and commissioner of insurance.

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Did Cooper comply with the act?

When Cooper issued his shutdown orders in March under the guise of a declared emergency, his administration originally declared he “sought and obtained the necessary concurrence from the Council of State consistent with the governor’s emergency power authorized in N.C. Gen. Stat. 166A-19.30(b),” according to John Locke Foundation director of legal studies Jon Guze.

When it became known that six of the ten Council of State members indeed did not grant authority, the Cooper administration instead pointed to an alternative source of power: 19.30(c), which authorizes him to “impose by declaration prohibitions and restrictions in the emergency area” if he “determines that local control of the emergency is insufficient to assure adequate protection for lives and property.”

Because this provision makes no mention of the Council of State, Cooper took the position that it effectively gives him unlimited power to act without Council of State concurrence, Guze wrote.

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Were Cooper’s actions based in legal and legitimate authority?

Citing the text of the act, Guze asked if the governor had actually determined “that local control of the emergency [was] insufficient to assure adequate protection for lives and property.”

“At the time, that seemed like quite a stretch. Such a finding seemed implausible on its face,” he concluded.

“Nothing would have prevented the local authorities in hotspots like Mecklenburg, Durham, and Wake counties from shutting down bars and restaurants,” noted Guze. “And, even if he had truly made such a finding, does 19.30(c) really give the governor unlimited power to act in such circumstance, or does it merely give him the power to assume the powers that would otherwise be exercised by the relevant local authorities?”

Guze continued, “This is an abuse of power and due process. The governor has been citing 19.30(c), not because he has determined that local control is insufficient, but simply to avoid the necessity for Council of State concurrence. But, if all that’s required to invoke the governor’s powers under 166A-19.30(c) is a pro forma claim of insufficient local control, the procedural check on gubernatorial power provided by 19.30(b) is a nullity, which can’t be right.”

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Did the “science and data” justify Cooper’s orders?

In a word: no.

Extreme measures such as Cooper’s lockdown orders and mask mandates require an extremely high level of justification.

Jon Sanders, senior fellow for regulatory studies for Locke, wrote that, “Cooper regularly cites ‘science and data’ in his extreme emergency orders. I have examined the science provided by Cooper and state health bureaucrat Mandy Cohen of the Department of Health and Human Services (DHHS) many times and found it lacking when it comes to justifying such extreme measures.”

First, Sanders reviewed the three studies cited by Cohen in a presentation before the NC House Health Committee the week before Gov. Roy Cooper first ordered face masks. He also looked into the research concerning the sensibility of Cooper quarantining the healthy via lockdowns and forcing them to wear masks.

In another article, Sanders wrote about a member of the EPA’s scientific advisory board who asked DHHS for evidence that mask mandates are effective at slowing the spread of coronavirus. The response from DHHS was stunning. Upon evaluating the research DHHS sent in response, this scientist discovered that “DHHS’s own case for forcing masks is based on a meta-analysis that finds masks are not even effective.”

Finally, in a three-part series linked below, Sanders evaluated the 23 studies cited by the Cooper administration to support their contention that mask mandates and shutdowns work to prevent the spread of coronavirus.

For each of these studies, Sanders provided a synopsis of the findings and concluded that not even one of them provides ample justification for Cooper’s extreme measures. Indeed, some of the studies suggest that measures such as the ones Cooper ordered do more harm than good.

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Negative consequences of lockdowns

Cooper’s measures supposedly to keep us safe from the spread of COVID-19 have not only been found to be ineffective at best, but they also come with steep costs in other areas of public health as well as economic devastation.

Despair, depression, substance abuse, and the denial of preventative health measures like cancer screenings are taking a heavy toll on the health of North Carolina’s citizens, and these grim effects will continue well after Cooper’s extreme orders end.

Moreover, thousands of small businesses across the state were shuttered and will never come back. Dreams were destroyed. Life savings vanished. Jobs were lost.

That’s not to mention how divisive Cooper’s abuse of his emergency powers have been, making already tense political tribalism even more toxic. Meanwhile, big, well-connected businesses thrived, picking up the pieces of the small businesses that were shattered by Cooper’s lockdowns and restrictions, widening the gulf between the haves and have-nots Cooper and his supporters claim to care about.

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What can be done to prevent abuses of power in the future?

Amend the Emergency Management Act.

“Even in an emergency, we don’t want the governor to wield unchecked, unlimited, and near-dictatorial powers,” Guze wrote. “Because it is made up of 10 independently elected officials, the Council of State is, by its nature, less partisan and more representative than the office of the governor, and in a time of emergency, representative, nonpartisan decision-making is exactly what is needed to win the public’s confidence.”

“[W]e should also never forget we are a free state governed by the rule of law, not men,” Sanders wrote, which is why the act lets the governor exert expanded emergency powers only with the concurrence of the Council of State. “That way, before the governor makes his call, other statewide elected officials are persuaded that it’s probably not the wrong call in an emergency.”

“The General Assembly’s task is clear,” Guze concluded. “It must amend the Emergency Management Act to provide that: (1) a determination that local control is inadequate simply means the governor may assume the emergency powers otherwise delegated to the relevant local authority and nothing more, and (2), regardless of what he may determine about the adequacy of local control, the governor may never impose sweeping, statewide lockdowns or other extreme emergency measures without Council of State concurrence.”

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About John Locke Foundation

We are North Carolina’s Most Trusted and Influential Source of Common Sense. The John Locke Foundation was created in 1990 as an independent, nonprofit think tank that would work “for truth, for freedom, and for the future of North Carolina.” The Foundation is named for John Locke (1632-1704), an English philosopher whose writings inspired Thomas Jefferson and the other Founders.

The John Locke Foundation is a 501(c)(3) research institute and is funded solely from voluntary contributions from individuals, corporations, and charitable foundations.