by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
In a recent opinion piece, I complained that Gov. Cooper’s statewide lockdown orders have been worse than useless. On the one hand, a growing body of empirical evidence shows that voluntary social distancing would have been sufficient to slow the spread of COVID-19 even if there hadn’t been any lockdown orders. (See here, here, and here.) On the other hand, despite their ineffectiveness, the lockdown orders have provoked a great deal of division and anger that will make even the most sensible and effective public health policies hard to implement if they become necessary in the weeks and months ahead. In today’s research brief, I want to supplement those arguments by noting that we wouldn’t be in this predicament if Gov. Cooper had included the Council of State in the governing process throughout the crisis as he was supposed to do under the Emergency Management Act.
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 he may only exercise those additional powers “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.
When Cooper issued his March 17 order closing bars and restaurants, the order specifically stated that he had “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).” In fact, he hadn’t. Six of the ten members refused to concur. When some of them complained, Gov. Cooper 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 gave him unlimited power to act without Council of State concurrence.
At the time, that seemed like quite a stretch. Did the governor actually determine “that local control of the emergency [was] insufficient to assure adequate protection for lives and property?” Such a finding seemed implausible on its face. Nothing would have prevented the local authorities in hotspots like Mecklenburg, Durham, and Wake counties from shutting down bars and restaurants. 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?
Undeterred by these questions, the lesson Gov. Cooper learned from the March 17 order wasn’t that he needed to work with the Council of State and obtain its concurrence before issuing future orders. Quite the contrary. In his subsequent orders, starting with the March 27 “stay at home” order, Gov. Cooper didn’t bother to refer to 19.30(b) at all. Instead, he simply invoked his power under 19.30(c) and cut the other members of the Council of State out of the decision-making process altogether.
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.
The Emergency Management Act requires concurrence by the Council of State for a reason. Even in an emergency, we don’t want the governor to wield unchecked, unlimited, and near-dictatorial powers. Moreover (and this is particularly relevant in the present circumstances, even in an emergency), we can’t expect the public to accept extreme measures and make major sacrifices unless they feel sure that their concerns and interests were taken into consideration when the decision to impose those measures was made. Because it is made up of ten 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, non-partisan decision-making is exactly what is needed to win the public’s confidence.
If the COVID-19 crisis persists or worsens in the coming weeks and months, we are going to need all the representative, non-partisan leadership and all the public confidence in government we can get. And even if the crisis gradually diminishes and eventually fades away, as we must all hope and pray it will, we need to ensure this kind of abuse of power never happens again. Either way, the General Assembly’s task is clear. 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.
For the rest of this series, see: