Antonin Scalia often noted that the primary safeguard of our constitutional liberties is the structure of our government. Every banana republic has a bill of rights, he once said, but the strength of the American system is the separation of powers. At the federal level, there are three separate, co-equal branches of government that must operate together for our representative republic to function properly, and this balance of power is mirrored at the state level. Unhappily, our system today is not functioning as designed.
In March 2020, the separation of powers shifted disproportionately to state executives. Under the guise of an emergency, governors began ruling outside the boundaries of their proper authority. In a moment of national panic, Americans permitted their state and local executives to take power—to declare states of emergency and to implement lockdowns—and then those executives did not want to give that power back.
Legally, the executives were operating pursuant to their “emergency power.” The executive is authorized to declare a state of emergency, which both activates emergency plans that the state and its localities have prepared and also transfers significant control to the governor. Although it varies by state, this authority is quite broad.
If you go back and examine any of the lockdown or mandatory masking orders, you should see a relatively formulaic approach. First, the edict will recite the facts that support the claim there is an ongoing catastrophe, then it will list the legal authority, and finally the resulting mandates. For example, in Virginia, when Governor Northam issued his masking order, he called upon the powers vested in him by Article V of the Virginia Constitution, and then pointed to § 44-146.17 of the Virginia Code. That’s the meat of the matter. That section of the code spells out the scope of the executive’s authority during an emergency.
Every state legislature can define these powers differently and include specific limitations, too. In Virginia, the legislature inserted a provision that no emergency action by the governor could “limit or prohibit” the right to keep and bear arms. That is why a gun range in Virginia was able to sue in 2020 and win an injunction that permitted it to reopen during the height of the lockdown. Although the judge said the injunction did not apply across the commonwealth, that discrete win signaled to Northam that he had gone too far, and he quickly issued a new order allowing all gun ranges to reopen.
Most state statutes automatically terminate emergency authority after a thirty- or sixty-day period, unless specifically extended by the governor. This highlights that emergencies are assumed to be of short duration. In 2020 and 2021, the governors were using COVID as an excuse to extend their authority indefinitely.
If the governors are empowered to declare and continue a state of emergency, what is the remedy? The Founders believed that the first and most powerful check on the executive would be the ballot box. But in modern practice, one of the best checks on the individual policies contemplated by an executive has been the resistance of the electorate in real-time. The judgment of the electorate, though, is usually most potent as a prophylactic or an immediate reprimand. Once the executive has taken the power and the people have acquiesced, it requires a much more forceful and unified resistance to roll back the overreach. The American public should have made clear they would not tolerate mask mandates before they were implemented; we did not, and the mandates issued.
At some point, the Left will attempt to create another emergency and once again seize power through lockdowns and mandates. To maintain some perspective, remember that the executive’s emergency authority is a good thing when properly exercised. The executive’s ability to move swiftly in a time of crisis is a strength of our system. The Founders robustly debated the extent and contours of the executive. As discussed by Hamilton in Federalist 70, they chose the unitary design to benefit from the “energy” of a single person unencumbered by the “dilatoriness” of a plurality in leadership. The executive’s speed and dispatch are indispensable in the realm of war and national security, but these traits are also critical in time of national emergency. However, as the Framers knew and we have experienced, this type of centralized authority is also very dangerous when abused.
A structural check on the executive is the intervention of a coordinate branch of government—the balance of powers working as designed. Most state statutes provide for the termination of the emergency either by executive order or joint resolution of the legislature.
To declare emergencies, to close businesses and confine Americans to their homes, to mandate masks, to limit access to churches, to suspend your civil liberties, the governors pointed to powers enumerated by statute—that is, defined by the legislature. Where the legislature defined the terms, it can redefine the terms. Where they are empowered to do so, state legislatures must amend their emergency statutes to appropriately limit the authority of the governors in the event of a future emergency.
In Brief:
- State governors/executives usually receive emergency authority by statute—that is, from their state legislatures.
- Red states must reexamine those statutes and—guided by the lessons of the COVID crisis—reconfigure the contours of the governor’s authority to guard against the abuses we saw in 2020 and 2021.
- Red state legislatures must also pass laws banning mask mandates and vaccine mandates. For example, in 2023, Texas banned private employers from mandating the COVID vaccine.
- The grassroots must lobby local leaders to take action now before the next crisis.
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