by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
At the John Locke Foundation we have been highly critical of Gov. Roy Cooper’s handling of the Covid-19 crisis ever since he issued his first lockdown order in March of 2020 (see below). We objected to Cooper’s lockdown regime with its ongoing state of emergency, not just because it constituted bad public policy, but also because he imposed it in a manner that arguably violated the Emergency Management Act (EMA) and certainly violated the North Carolina Constitution.
In the previous installment in this series I insisted that, “No individual should have the power to deprive so many people of so much liberty for such a long time,” and I proposed two changes to the EMA that would prevent it from happening again. Much to my delight, both of those changes were included in the recently enacted budget bill.
Describing the first of those proposed changes I said:
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.
To solve this problem, I suggested the EMA “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.” Happily, the amended EMA does precisely that by adding the following language to the section that deals with gubernatorial assumption of local authority emergency power: “In exercising any of the powers … of this section, the Governor shall obtain a concurrence of the Council of State.”
Regarding the second proposed change I pointed out that “the [current] EMA provides that once the governor has declared an emergency, only he or she may rescind it, which means the General Assembly loses control.” To solve that problem, I suggested that, “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 only does the amended EMA do precisely that, it adds a useful refinement as well by stating:
A [statewide] state of emergency declared pursuant to this section shall expire … 30 calendar days after issuance without a concurrence of the Council of State. A declaration of emergency may not be continued without the concurrence of the Council of State. If the Council of State concurs with the declaration of emergency, the declaration of emergency shall expire 60 calendar days after issuance, unless the General Assembly extends the declaration of emergency by enactment of a general law.
The first of these amendments to the EMA provides a much-needed check on executive power. The second restores the balance of power required by the North Carolina State Constitution, which declares that the legislative and executive powers of the state government “shall be forever separate and distinct from each other” and assigns the legislative power exclusively to the General Assembly.
Together they ensure that no individual will ever again be able to deprive so many North Carolinians of so much liberty for such a long time.
For previous installments in this series, see:
Time to amend the Emergency Management Act, Part One
Time to amend the Emergency Management Act, Part Two
Time to amend the Emergency Management Act, Part Three
Time to amend the Emergency Management Act, Part Four
For a comprehensive list of Locke commentary on this topic, see:
Emergency Powers Resource Page
For related commentary, see:
Statewide lockdowns unnecessarily divide, divert us from task at hand
Statewide lockdowns aren’t just outrageously authoritarian; they’re also ineffectual, and they waste valuable time and energy that should be used to fight COVID-19
How Effective Are Stay-at-Home Orders?
How Effective Are Stay-at-Home Orders? Continued
‘Following the science’? In a free society, Cooper’s severe restrictions require strong justification