Emergency Powers and State Legislative Capacity During the COVID-19 Pandemic
Justice Louis Brandeis famously asserted that “one of the happy accidents of the federal system” is that states may “serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country.” The governmental responses to the COVID pandemic, especially with regard to quarantines, lockdowns, and mask mandates, have largely been undertaken by states and localities. Given the significant differences which exist among the states in their constitutional systems, political dynamics, and economic circumstances, it is no surprise that the states’ responses to COVID have differed dramatically. These differences afford an opportunity to examine, among other things, how the different institutional structures of the states have influenced the way state governments have responded to the emergency.
This article focuses on one aspect of the differences across the states’ responses to COVID: pushback against the use of “emergency powers” granted to governors by state legislatures to respond to the pandemic. These emergency powers raise questions about the permissible scope of delegation to the executive branch at the state level. Although scholarly attention to the nondelegation doctrine at the state level is sparse, there is a general consensus that the nondelegation doctrine is more robust at the state level than it is at the national level. In a few prominent cases in Michigan and Wisconsin, the states’ highest courts invalidated emergency orders using nondelegation-type reasoning. Part I of this article describes these cases.
These decisions might lead one to conclude that the best hope for constraining emergency powers lies with state courts and state nondelegation doctrines. This article, however, focuses on state legislatures as counterweights to powerful state executives wielding emergency power. Part II of this article explains the reasons for this focus. State courts have been of limited use in curtailing governors’ emergency powers, and state legislatures are better institutions for ensuring the democratic accountability of the use of such powers.
Part III focuses on a handful of states as case studies in legislative resistance against (or complicity in) the use of emergency powers to respond to the COVID pandemic. After briefly describing the reasons for the selection of cases, this part describes how, in each state, executives relied on old laws, creatively applied to the circumstances of the pandemic, to take wide-ranging action in response. It also discusses whether state legislatures challenged the use of these powers, and if so, how they did so and how successful their efforts were.
Part IV discusses the takeaways from the survey in Part III. It argues that state legislatures can promote democratic legitimacy and limit the use of such emergency powers, but only if they are properly equipped to do so. In particular, state legislatures should expand the duration of their legislative sessions and put limits on the duration of emergency declarations. Many states have already taken these measures. Part IV argues that further measures are probably needed to refine the scope of emergency powers. It proposes sunsetting emergency statutes to prevent the use of old and outdated laws for emergencies not envisioned by the legislatures that enacted them. It also advocates for legislative veto provisions not only on emergency declarations themselves, but also on specific orders issued by executive officials. More broadly, Part IV argues that state legislative capacity needs to be expanded to empower state legislatures to take on these responsibilities.
