by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
For more than 10 months, Gov. Roy Cooper has forced North Carolinians to endure a lockdown regime that constitutes the most extreme, comprehensive, and long-lasting restriction of liberty since Emancipation. Whether this lockdown regime was necessary or effective as a way of controlling the spread of COVID-19 is a question about which reasonable minds may differ. (For my own view of the matter, see here, here, here, here, and here.)
All North Carolinians should be concerned, however, about the fact that the governor imposed the lockdown entirely on his own authority, without concurrence by the Council of State, and by the fact that he has kept it in place for 10 months despite multiple lawsuits challenging its legality and despite explicit opposition from the state legislature.
As I explained in the first three parts of this series (see here, here, and here), by imposing and maintaining the lockdown in such a high-handed way, Cooper has violated both the North Carolina Emergency Management Act (EMA) and the North Carolina State Constitution. As I also explained, the governor was able to do so because the EMA delegates too much power to the executive branch and fails to provide enough in the way of legislative guidance and oversight.
The following changes to specific sections of the EMA would address these deficiencies.
The North Carolina State Constitution declares that, “The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.” It assigns the legislative power — the power to make laws and other enforceable rules of conduct — exclusively to the North Carolina General Assembly.
In a true emergency, however, there may be an immediate need temporarily to suspend existing laws and impose new rules of conduct, and because this need would be immediate, there may not be time for the General Assembly to meet and approve the necessary changes. The purpose of the EMA is to solve that problem by temporarily delegating a limited amount of legislative power to executive officers and local authorities when emergency conditions warrant doing so.
Unfortunately, as Cooper’s 10-month-long-plus lockdown illustrates, in its current form the EMA fails to ensure that the temporary delegation of legislative power really is temporary. Making the following changes to the definition of “emergency” will help correct that problem by making the purpose of the Act clear. E.g.:
(6) Emergency. – An occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property requiring an immediate short-term response as a result of resulting from any natural or man-made accidental, military, paramilitary, terrorism, weather-related, public health, explosion-related, riot-related cause, or technological failure or accident, including, but not limited to, a cyber incident, an explosion, a transportation accident, a radiological accident, or a chemical or other hazardous material incident. Regardless of how severe and threatening it may be, an ongoing problem requiring a long-term response does not constitute an emergency.
As currently formulated, this section provides that once the Governor has declared an emergency, only he may rescind it. It should be amended to ensure that, even in an emergency, legislative powers are to be returned to the General Assembly within a reasonable timeframe and that the General Assembly retains ultimate control over the duration of gubernatorial disaster declarations. E.g.:
(c) Expiration of States of Emergency. – A state of emergency declared pursuant to this section shall expire when it is rescinded by the General Assembly or the authority that issued it. If not rescinded, a state of emergency declared pursuant to this section shall expire after thirty (30) days unless extended by the General Assembly.
This reform could be made even stronger by requiring that extensions be approved by a supermajority, e.g., by two-thirds of all voting members. Cooper’s high-handed approach to lockdowns has had the unfortunate effect of politicizing what should have been a nonpartisan response to COVID-19. Because it would require bipartisan support, a supermajority requirement might encourage a less politicized response to future emergencies.
As currently formulated, this section does not impose a limit on the duration of emergencies declared by local authorities. It should be amended to give the General Assembly ultimate control over the duration of disaster declarations by local authorities. E.g.:
(c) Expiration of States of Emergency. – Unless an ordinance adopted pursuant to G.S. 166A-19.31 provides otherwise, a state of emergency declared pursuant to this section shall expire after thirty (30) days or when it is terminated by the official or governing body that declared it. The governing body that declared the state of emergency may petition the General Assembly for an extension.
Prohibiting price gouging during emergencies serves no purpose and is actually counterproductive because it reduces the availability of much-needed goods and services within the emergency area. This section should be repealed in its entirety.
Subsection (b) of this section requires Council of State concurrence in order for the governor to exercise these additional powers. Unfortunately, Cooper has used the ambiguous language of subsection (c) as a pretext for evading that important check on his power. The latter should be amended to make it clear that 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 that, 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. E.g.:
(c) In addition to any other powers conferred upon the Governor by law, during a gubernatorially or legislatively declared state of emergency, if the Governor determines that local control of the emergency is insufficient to assure adequate protection for lives and property because (i) needed control cannot be imposed locally because local authorities responsible for preservation of the public peace have not enacted appropriate ordinances or issued appropriate declarations as authorized by G.S. 166A-19.31; (ii) local authorities have not taken implementing steps under such ordinances or declarations, if enacted or declared, for effectual control of the emergency that has arisen; or (iii) the area in which the emergency exists has spread across local jurisdictional boundaries, and the legal control measures of the jurisdictions are conflicting or uncoordinated to the extent that efforts to protect life and property are, or unquestionably will be, severely hampered; or (iv) the scale of the emergency is so great that it exceeds the capability of local authorities to cope with it, the Governor has the following powers:
(1) To impose by declaration prohibitions and restrictions in the emergency area within the jurisdiction of the local authority for which the determination is made. These prohibitions and restrictions may, in the Governor’s discretion, as appropriate to deal with the emergency, impose any of the types of prohibitions and restrictions enumerated in G.S. 166A-19.31(b), and may amend or rescind any prohibitions and restrictions imposed by local authorities. Prohibitions and restrictions imposed pursuant to this subdivision shall take effect in accordance with the provisions of G.S. 166A-19.31(d) and shall expire upon the earliest occurrence of either of the following: (i) the prohibition or restriction is terminated by the Governor or (ii) the state of emergency is terminated.
(2) Give to all participating State and local agencies and officers such directions as may be necessary to assure coordination among them. These directions may include the designation of the officer or agency responsible for directing and controlling the participation of all public agencies and officers in the emergency. The Governor may make this designation in any manner which, in the Governor’s discretion, seems most likely to be effective. Any law enforcement officer participating in the control of a state of emergency in which the Governor is exercising control under this section shall have the same power and authority as a sheriff throughout the territory to which the law enforcement officer is assigned.
(3) This section supplements the emergency powers delegated to the Governor only to the extent necessary to allow the Governor to assume powers otherwise delegated to specific local authorities within the areas of their jurisdiction. It does not grant the Governor any additional power to impose prohibitions and restrictions on a statewide basis beyond the powers described in G.S. 166A-19(b), nor does it obviate the requirement for Council of State concurrence before the Governor may impose statewide prohibitions and restrictions.
In addition to the specific changes to the EMA described above, the General Assembly may want to consider adding some general provisions to ensure that the EMA itself, and any restrictions imposed under its authority, do not violate the rights guaranteed by the U.S. Constitution and the North Carolina State Constitution. The Pacific Legal Foundation is working on a model Emergency Power Limitation Act that includes a provision designed to accomplish that purpose. I have adapted it to North Carolina’s specific situation as follows:
The exercise of any emergency power the Governor or other official may have under the North Carolina State Constitution and the laws of North Carolina is limited as follows:
(a) Emergency orders, decrees, regulations, or other mandates (hereinafter, “orders”) issued by state or local officials that bind, curtail, or infringe the rights of private parties must be narrowly tailored to serve a compelling public health or safety purpose. Each order shall be limited in duration, applicability, and scope in order to reduce any infringement of individual liberty.
(b) State courts shall have jurisdiction to hear cases challenging the lawfulness of state and local emergency orders, including compliance with this act’s limitations on such orders, and the courts shall expedite consideration of such challenges to the extent practicable. Inequality in the applicability or impact of emergency orders on analogous groups, situations, and circumstances may constitute one ground among others for a court to invalidate or enjoin an emergency order, or some of its applications, on the basis that it is not narrowly tailored to serve a compelling public health or safety purpose.
(c) To the extent that the Constitution or other law allows officials with statewide authority to issue emergency orders, only the Governor may issue statewide orders that infringe constitutional rights in a nontrivial manner and only with the timely ratification of the General Assembly. Constitutional rights include, but are not limited to: the rights to travel, work, assemble, and speak; the freedom of religious exercise; the nonimpairment of contract and property rights; freedom from unreasonable searches and seizures; and the freedom to purchase lawful firearms and ammunition. Statewide emergency orders infringing on constitutional rights are further limited as follows:
(1) All such orders shall expire in seven (7) days unless ratified by a joint resolution of the General Assembly. The Governor may call the General Assembly into special session for the purpose of ratification.
(2) Following ratification, all such orders shall expire in thirty (30) days unless the Governor or General Assembly terminates them earlier or the General Assembly approves their extension by a joint resolution.
For the rest of this series, see:
For more information, see: