This past week’s failed efforts by the N.C. Legislature to reign in Governor Cooper’s heavy handed and autocratic use of the state’s Emergency Management Act showed that partisan politics trumps good governance.
The legislature convened for a special session Wednesday attempting to override Cooper’s veto of several bills, three of which dealt with his closure mandate associated with his authority as described in the Emergency Act, and one dealing with the security of churches which would allow concealed carry at churches that also house school facilities. All four override efforts failed with Democrats siding with the governor.
Senate Bill 105, “An Act to Clarify the Expiration of a State of Emergency” was by far the most important legislative issue of the day. This bill would have corrected several major flaws in the Emergency Management Act that should concern all citizens and business owners in the state.
The current Emergency Powers Act allows the governor to circumvent actions requiring concurrence from the other elected executive branch officials. The governor, according to the current legislation, should seek concurrence of the Council of State, which consists of the 10 statewide executive branch elected officials. But failure to get this concurrence does not restrict his use of the emergency act. The majority of the council are Republicans and they have complained, correctly, that the governor who is a Democrat, has not sought their advice or concurrence of his actions.
An additional flaw in the current act is the absence of a sunset or time restriction on the use of the governor’s emergency powers. As the current legislation is written there is no established rule for how long the state of emergency may remain in force and there is no clear description of what justifies lifting of the state of emergency. The absence of a timeline and clarity of the goal of the emergency action allows the governor to continue the state of emergency actions for as long as he deems necessary without having to justify his decision to the legislature or the state’s residents and businesses.
SB 105 would have fixed these obvious flaws by restricting the governor’s unilateral emergency authority to only 48 hours if the emergency area is statewide. Any state of emergency extending beyond 48 hours would require the Council of State’s concurrence and only for 30 days at a time.
Governor Cooper, obviously attempting to keep control of as much executive power possible without having to justify his actions, vetoed the SB 105. He erroneously argued that “Placing additional bureaucratic and administrative obligations on the declaration of a state of emergency is a substantial change in the law, frustrates executive branch officials’ ability to quickly and efficiently respond to such an emergency by requiring the concurrence of officials with limited involvement in managing the response, and would risk diverting focus from responding to such an emergency."
SB 105 does not represent a substantial change in the law, it clarifies the role of the Council of State and adds a timeline for action.
Contrary to Cooper’s complaint, the proposed senate bill would allow the governor to take immediate action as necessary but then, in the cases of statewide mandates, require consultation with the Council of State. Working with the Council of State does not add to his duties, in fact he should be consulting with the council members weekly to advise them of his plans and actions. Since these elected executive branch officials are often tasked with fulfilling legislative action, consulting with them will not add bureaucratic burdens but instead facilitate the process.
As for his complaint about placing “administrative obligations” on his actions, he is correct. The governor does not hold all the power in the state. He shares that with the legislature which is articulated in the state constitution and as such he is obligated to report to the legislature which represent the state’s voters and residents.
This very important and needed clarification bill failed because of the partisan divide in the legislature. The Republican caucus supported the bill while the majority of Democrats voted against passing the measure, thereby missing the number of votes needed for an override.
Considering the continued impact of the governor’s heavy handed restrictions on citizens and businesses in the state, it will be interesting to see how the Democrat legislators who voted to support the governor’s veto, respond to their constituents. It is obvious that the failure to allow for more oversight, a defined time line and clarity on the process is an indication that those legislators supporting the governor feel he is their primary constituent and not the voters who sent them to Raleigh in the first place.