What happens when an emergency drags on for weeks and months until it becomes, for lack of a better word, normal?
That’s what has happened with the COVID-19 emergency that led to school closings, mask mandates, business closures, quarantine orders and many other things that once concerned people but now receive a shrug of the shoulders.
It’s a question that legislators must answer, and if not them, the courts.
Here in West Virginia, the Legislature refused last year to assert its power of the purse when Gov. Jim Justice decided he and he alone was to decide how $1.25 billion of federal COVID relief was to be spent. The House of Delegates voted to be called into special session to appropriate the money, but the Senate wouldn’t go along. Justice, of course, refused to call a special session.
The same situation has arisen in Kentucky, except there the General Assembly, which is controlled by a supermajority of Republicans, has decided it has had enough of how Democratic Gov. Andy Beshear is handling the year-long emergency.
Last week, Kentucky legislators overrode Beshear’s vetoes of several measures that would have limited his authority to deal with emergencies, in this case COVID-19. According to the Associated Press, the legislation “amounted to a repudiation of the governor’s nearly 11-month strategy to contain the spread of the coronavirus.”
The key words in that passage are “nearly 11-month strategy.” Eleven months isn’t an emergency. It’s a situation, a state of being, the status quo.
Emergency powers are for temporary, short-term measures so authorities can deal with unforeseen events such as floods, tornadoes, mass shootings or the like. They are not meant to allow governors or other officials to usurp the powers of legislative bodies for months on end.
Beshear said he will take the matter of his executive powers to that state’s Supreme Court. Last year the court upheld his authority. But that was last year and this is this year, almost a year into COVID-19.
Kentucky’s situation — medical and political — is different from that in West Virginia, but the basic questions are the same. Here, a Republican governor who easily won reelection during the pandemic last year has no serious opposition from his party, which controls the Legislature.
Republican legislators say they will introduce legislation to limit the governor’s powers during emergencies. The question is exactly what limits that legislation will offer and whether Justice will agree to them. And if not, if there will be enough votes to override his veto, assuming there is one.
Since the U.S. Constitution was ratified in 1788, the idea of separation of powers has been fundamental to American life. The executive branch has certain powers during some emergencies, but at some point emergencies become day-to-day situations we learn to live with. The fact the COVID virus could be mutating faster than vaccines can be developed indicate this emergency could be with us for a few more years.
Thus it is imperative that legislators here and elsewhere take back the power given to them by their state constitutions and assert the doctrine of separation of powers.