John Locke Update / Research Brief

Why EMA reform is so urgent: Cooper’s abuse of emergency powers is a year old

posted on in Civil Society, COVID-19 Series, Government Reform, Law & Regulation, Legal Update, Property Rights, Rights & Regulation
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  • On March 17, 2020, Gov. Cooper used emergency powers to shut down restaurants and bars to in-person eating and drinking
  • The Emergency Management Act requires the Council of State to concur with such orders, but they denied it
  • Cooper then claimed authority elsewhere in state law, setting a dangerous precedent that legislators must fix by reforming the EMA

Today marks the first anniversary of Gov. Roy Cooper’s abuse of the Emergency Management Act. Here is the timeline from that day.

10:31 a.m.

Cooper issues a press release announcing a media briefing to be held at 2 p.m. in which he will announce closing restaurants and bars to dine-in customers, only allowing takeout and delivery orders, effective at 5 p.m. the very day.

Cooper’s office has not yet sought concurrence for this order from the Council of State, although it is required by the Emergency Management Act (“During a gubernatorially or legislatively declared state of emergency, with the concurrence of the Council of State, the Governor has the following powers…” — G.S. 166A-19.30(b).) The Council of State comprises 10 elected officers: the governor, the lieutenant governor, the secretary of state, the attorney general, the state treasurer, the state auditor, the superintendent of public instruction, and the commissioners of agriculture, labor, and insurance.

11:26 a.m.

NC Department of Public Safety assistant general council Will Polk sends an email asking Council of State members to “stand by for a concurrence e-mail on a new Executive Order,” which will be sent “within the hour.” (Note: The emails quoted here were made available by the office of Lt. Gov. Dan Forest.)

12:41 p.m.

Polk sends out an email on behalf of Cooper seeking concurrence from the other members of the Council of State via email. It seeks their concurrence on two items: one related to modifying enforcement of requirements for unemployment benefits, and the other shutting down food and beverage sales. It asks for their concurrence by 1:15 p.m.

12:44 p.m.

Jennell Baughman, protocal officer and executive assistant to Secretary of State Elaine Marshall, replied “Secretary Marshall concurs.”

12:45 p.m.

Lt. Gov. Dan Forest asked, regarding the food and beverage sales, “In # 2 are you asking for concurrence in something the Governor has already announced?”

1:00 p.m.

Insurance Commissioner Mike Causey replied “I feel this needs further discussion.”

1:01 p.m.

Attorney General Josh Stein concurred.

1:43 p.m.

Forest concurs with the first request. But as for the other, he wrote:

As to number 2 (Restaurants) – I believe there should be flexibility for restaurants & other establishments. I would strongly encourage them to move to take-out and delivery only. We are talking here about shutting down a large swath of business across this state by executive action. What restrictions exist on gubernatorial power under 166A-19.30(b)(5)? I do not concur in request number 2.

2:00 p.m.

Cooper announces the Executive Order, effective 5:00 p.m., at the media briefing. His office does not post it, which is unusual — especially for an order about to take effect.

At the time the briefing started, only three other members of the 10-member Council of State had even voted on the order.

2:08 p.m.

State Treasurer Dale Folwell encourages Cooper to think through the first part and worries that part of it “seems to encourage business to lay off individuals when WE should REWARD them for not laying them off. I could be wrong.”

As for the other part, he did not concur, writing:

On item #2, it should highly encourage these limitations on operations, NOT mandate them. The eating establishments that I frequent are 2 steps ahead. We should honor their tough decisions and the common sense of North Carolinian’s. (Not to mention the total disruption of the LARGEST component of NC’s economy)

2:24 p.m.

Agricultural Commissioner Steve Troxler concurred on the first part but wrote, “As to #2, I do not concur.”

2:28 p.m.

Superintendent of Public Instruction Mark Johnson concurred on the first part but wrote, “Do not concur with 2.”

2:35 p.m.

Causey concurred on the first part but wrote “I do not concur on #2.”

3:20 p.m.

Folwell sends an email to Cooper and others requesting, “I anticipate being asked about the vote count on your executive order. Please release the vote in the next 15 minutes.”

That afternoon

The vote stands 6-3 in opposition to the order against food and beverage sales. Forest, Folwell, Causey, Troxler, Johnson, and Labor Commissioner Cherie Berry all voted not to concur with the shutdown of food and beverage sales. Cooper does not have concurrence on the order, which he had requested as required by state law.

Forest issues a press release announcing:

Earlier today Governor Cooper announced, via a press release, that all North Carolina restaurants and bars must close in-restaurant seating by 5pm this evening. His mandate will devastate our economy, shutter many small businesses, and leave many people unemployed, especially in the rural areas of our state where food supply is already critical.

After the press release, and shortly before a scheduled press conference, I, along with other Council of State members, was asked to concur with the Governors decision with no discussion. The Governor held his press conference and made the announcement even after a majority of the Council of State voted not to concur with the Governor. Thus, he does not have the authority to issue this part of his executive order.

While I understand that all actions in a time of crisis are very difficult decisions and have many consequences, some decisions are so serious they require, by law, discussion with, and approval of, other state leaders.

4:43 p.m.

Cooper’s office responds to Forest’s press release this way:

Sadie Weiner, spokesperson for Governor Roy Cooper, shared the following statement after Lieutenant Governor Dan Forest challenged the Governor’s authority to close restaurants and bars with the exception of takeout and delivery due to the COVID-19 pandemic.

“It’s one thing to disagree, it’s another to create a chaotic situation in the middle of a pandemic. The Governor is taking action to protect the health and safety of North Carolinians and does not need concurrence. The Governor and the Secretary of DHHS have the authority to do this under state public health and emergency powers law.”

Cooper has still not posted the order, even though it is now minutes from taking effect. Notice that Cooper tells the press and every citizen in the state that he “does not need concurrence” from the Council of State because he and the state health secretary “have the authority to do this under state public health and emergency powers law.”

It is unknown if any member of the media wondered at the time — or since — why the governor’s office would urgently request Council of State members to “stand by for a concurrence e-mail … within the hour” and then, upon sending it, request a response within 30 minutes if the governor actually believed he did not need their concurrence.

6:04 p.m.

Cooper releases Executive Order 118, even though it was already in effect for over an hour. He “avoided” the legal problem of lacking concurrence this way:

Instead, Cooper’s order based the restaurant and bar shutdowns on very broad readings of public-health laws that give the secretary of Health and Human Services or a local health director the power to abate an imminent hazard (G.S. 130A-20(a)) and the state Health director or a local health director quarantine authority (G.S. 130A-145(a)).

Why? To date, none of the other restrictions in the governor’s COVID-19 Executive Orders strays outside of G.S. 166A-19.30(b). The very fact Cooper requested concurrence from Council of State members on the restaurant and bar shutdowns makes it plain he knew that’s where he drew his authority. Not from statutes concerning localized hazard abatements or quarantines.

That was a year ago today. My colleague Jon Guze has written a masterful series on why — because of Cooper’s abuse of state law, of his emergency powers, and of the very idea of an emergency that requires action in lieu of legislative deliberation — the legislature must amend the Emergency Powers Act to protect the people of North Carolina from such dangerous one-person rule.

Carolina Journal reports that the legislature is debating one such bill even now: House Bill 264, the Emergency Powers Accountability Act. Among other things, it would require consensus from the Council of State within 48 hours; not allow any statewide declaration of emergency to last beyond 30 days; require each extension up to 30 days to require new concurrence from the Council of State; and once concurrence fails, not allow similar declarations based on the same emergency.

Please read Guze’s series here, all four parts. Because when the pandemic finishes fading out, the threat to North Carolinians from Cooper’s seizing power in this fashion will remain. It will be an open invitation to future governors, regardless of party. Remember Lord Acton’s warning: “Power tends to corrupt and absolute power corrupts absolutely.”

Jon Sanders is an economist studying state regulations, that spreading kudzu of invasive government and unintended consequences. Serving as Senior Fellow of Regulatory Studies and also Research Editor at the John Locke Foundation, Jon gets in the weeds of all… ...

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