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In a great many states and municipalities, government executives have declared states of emergency. These are in most cases mayors and state governors who first declare a state of emergency and then begin unilaterally issuing a wide variety of executive orders without consent from any elected legislative body.
Historically, these emergency periods were limited to a specific duration, often thirty days.
The Lawfare blog has helpfully summarized the emergency declaration power of most states:
- In Texas, “ A state of emergency concludes when the disaster has been deemed to have passed, if the legislature decides to terminate it, or if the declaration is not renewed by the governor after thirty days.”
- In Colorado, “A state of emergency cannot last more than thirty days without the governor renewing it and the general assembly, by joint resolution, can terminate a state of disaster emergency.”
- In Florida, “The state of emergency cannot continue for longer than 60 days unless the governor renews it.”
- In New Jersey, “A public health emergency is automatically terminated after 30 days unless the governor renews it under the described standards.”
- In New York, “any action the governor takes using his emergency power must not last for longer than 30 days. The governor can renew this emergency action for an additional 30 day period after reconsidering all of the relevant facts and circumstances.”
Notice a potential problem here: the “time limits” are essentially meaningless, because all that is required to extend them is for a single person—the governor in these cases—to declare the emergency extended. Even worse, the same person who declares the emergency is the one who rules by decree during the emergency.
The only possible veto in many cases exists if the state’s legislative body convenes and passes a resolution to end the emergency declaration, as happened recently in Pennsylvania. Such a process, however, throws the status quo strongly in favor of one-man rule by decree. It is assumed that a single person can declare an emergency and then govern as he or she wishes with virtually no institutional opposition until the full legislature can convene and take a vote. In some states, there isn’t even a clear means for the legislature to meet when it is not already convened according to the usual calendar. After all, many state legislatures only meet part of the year. Some legislatures meet only once every two years.
In practice, the system should be the reverse: emergency declarations should provide for a veto from a small legislative committee or some other group of elected officials outside the governor’s office.
F.A. Hayek discusses this in volume 3 of Law, Legislation, and Liberty:
“Emergencies” have always been the pretext on which the safeguards of individual liberty have been eroded—and once they are suspended it is not difficult for anyone who has assumed such emergency powers to see to it that the emergency will persist. Indeed if all needs felt by important groups that can be satisfied only by the exercise of dictatorial powers constitute an emergency, every situation is an emergency situation. It has been contended with some plausibility that whoever has the power to proclaim an emergency and on this ground to suspend any part of the constitution is the true sovereign. This would seem to be true enough if any person or body were able to arrogate to itself such emergency powers by declaring a state of emergency.
It is by no means necessary, however, that one and the same agency should possess the power to declare an emergency and to assume emergency powers. The best precaution against the abuse of emergency powers would seem to be that the authority that can declare a state of emergency is made thereby to renounce the powers it normally possesses and to retain only the right of revoking at any time the emergency powers it has conferred on another body. In the scheme suggested it would evidently be the Legislative Assembly which would not only have to delegate some of its powers to the government, but also to confer upon this government powers which in normal circumstances nobody possesses. For this purpose an emergency committee of the Legislative Assembly would have to be in permanent existence and quickly accessible at all times. The committee would have to be entitled to grant limited emergency powers until the Assembly as a whole could be convened which itself would then have to determine both the extent and duration of the emergency powers granted to government.
As is often the case, Hayek is quite milquetoast here, assuming that the civil government ought to enjoy significant leeway in what it can do during an emergency. But even this highly moderate view of Hayek’s would be an immense improvement from the current status quo, which is one in which governors can appoint themselves de facto dictators for an open-ended amount of time, and in which the only way of ending the one-man rule is for the legislature to take extraordinary measures. It’s a truly odd state of affairs in a country that claims—less convincingly with each passing day—to be a country that values the rule of law and opposes the arbitrary rule of a tiny number of privileged government agents.
