On Monday, a county judge struck down Oregon Gov. Kate Brown’s order keeping churches shut due to the coronavirus pandemic. The state Supreme Court quickly issued a stay, keeping Brown’s order in place, at least for the time being.
The case was brought by a group of churches arguing the governor had overstepped her authority. The ruling came hard on the heels of a decision Saturday from a federal judge in North Carolina, who struck down Gov. Roy Cooper’s ban on churches holding indoor services. "This court does not doubt that the governor is acting in good faith to lessen the spread of COVID-19 and to protect North Carolinians," wrote Judge James Dever III, "but restrictions inexplicably applied to one group and exempted from another do little to further these goals and do much to burden religious freedom."
When it comes to religious freedom, courts have offered mixed opinions. On Friday, a federal judge ruled against a Louisiana pastor who challenged Gov. John Bel Edwards’ restrictions on services as part of a broader ban on large gatherings. “The court finds that there is a substantial relationship between the occupancy limitations in the governor’s orders and the current severe public health crisis,” wrote Judge Brian Jackson. “Such restrictions are directly intended to limit the contact-based spread of COVID-19.”
Around the country, other churches and religious organizations are challenging governors’ limits on service size and indoor worship. They’re not alone. Even as governors have begun easing restrictions on commerce and movement, their authority continues to be questioned by legislators, local officials, business owners and other individuals.
At least 60 sheriffs around the country have announced they won’t enforce governors’ stay-at-home orders. Angry protests at capitols have become routine and have received considerable media attention.
Katie Witt, the mayor of Kaysville, Utah, and a candidate for Congress, is defying state orders to allow a protest concert to take place in a city park at the end of the month. “Yes, it violates the directive of the governor," Witt said. "It’s a protest, and we are allowing them the space to do that. I’m willing to be uncomfortable to stand up for our First Amendment rights.”
Polls indicate that most Americans continue to support a cautious approach, with governors who were slower to take the crisis seriously receiving lower approval ratings than their peers.
But other players in the political process have made it clear that they’re not going to be sidelined.
"We won’t allow one dictator to determine everything,” Kansas Senate President Susan Wagle said last week. “We will have a check and a balance of powers.”
Challenged by Legislators
Last week, the Wisconsin Supreme Court ruled in favor of legislators, striking down Gov. Tony Evers’ stay-at-home order. As the crisis continues, more governors are finding their actions questioned by legislators, and not just in the courts.
As Minnesota’s legislative session ended on Sunday, state House Republicans blocked a $2 billion construction bonding bill. Kurt Daudt, the House Republican leader, had made it clear his caucus would withhold its support unless Democratic Gov. Tim Walz agreed to relinquish emergency powers and consult more with the legislature. Democrats hold a majority in the chamber, but bonding bills require a three-fifths majority to pass.
As is normally the case, many of the attacks launched on governors have been partisan in nature. Legislators are also starting to push back against governors of their own parties. At a hearing on Monday, California Sen. Holly Mitchell, who chairs the budget committee, complained that fellow Democrat Gov. Gavin Newsom was trying to assume too much control over $3 billion in COVID-related spending.
Last week, the Legislature in Mississippi passed a bill setting the terms for disbursing small business funds set to the state by the federal stimulus package known as the CARES Act, while reserving other federal dollars in a legislative budget contingency fund. Gov. Tate Reeves hoped to exercise sole discretion over the funds, but fellow Republican House Speaker Philip Gunn made it clear that the legislature would play a leading role in appropriating the money.
“Fights over exactly what a governor can or can't do through unilateral powers are nothing new in state government,” says Thad Kousser, a political scientist at the University of California, San Diego.
Most legislatures have postponed or suspended their sessions. Although this leaves the governor alone in the capitol, it’s allowed frustration to build among legislators, Kousser suggests.
“This makes it very difficult for governors to consult with legislators dispersed across a state, making unilateral action more necessary,” he says, “but also leaves legislators feeling that their institutional prerogatives are especially threatened due to their absence. Which is all a recipe for an escalation of inter-branch warfare.”
How Governors Got Clout
During the early days of the republic, governors were granted little authority. Distrust of centralized government and lingering anger over colonial governors meant early state constitutions gave governors almost nothing to do. Following his state’s constitutional convention, one North Carolina delegate said that the governor had been given just enough power “to sign the receipt for his salary.”
Governors were not given control over most state departments and agencies. Instead, they were run by separately elected officeholders, boards or commissions. Over time, of course, this has changed. In recent decades, agencies have been consolidated and governors have won considerably more authority over them. In North Carolina, the governor was finally granted veto power — the last governor to get it — back in 1996.
Governors now have a big say in setting the legislative agenda everywhere and few legislators can ever hope to match the size of their bully pulpits. That’s been especially true lately, given the coronavirus.
The stay at home or shelter in place orders that governors began issuing in March were mostly rooted in emergency powers granted to their predecessors decades ago. The extent of the actions they’ve taken — and the duration of the crisis — has led some legislators to argue that it’s time to curb those powers.
“It doesn’t surprise me to see legislatures wanting a bigger role as the length of the crisis grows,” says Justin Phillips, a Columbia University political scientist and co-author, with Kousser, of The Power of American Governors.
“When governors were acting so quickly, it was on the advice of experts and didn’t seem like they were making political decisions,” Phillips says. “As time has lapsed, it’s gone out of the realm of experts and into partisan politics.”
Michigan GOP legislators argued in court last week that Democratic Gov. Gretchen Whitmer needs legislative approval to shut down businesses and issue other restrictions. Whitmer maintains that she has the authority to issue emergency orders unilaterally, thanks to a law dating back to 1945. “They’re acting as though we’re in the middle of a political problem,” Whitmer said last month. “This is not a political problem that we have. This is a global health crisis.”
Senate Majority Leader Mike Shirkey wants to overhaul the 1945 law. Since Whitmer holds a veto pen, that’s not a realistic option through the legislative process. During a radio appearance earlier this month, Shirkey said that gathering signatures for a ballot initiative to limit the governor’s powers is “probably the No. 1 priority right now.”
Who’s in Charge?
After losing his legal battle, Evers made it clear he’s not issuing any new orders. “The Supreme Court made it clear this is not our gig,” he said last week.
Wisconsin legislators had successfully argued that the governor needed to consult with them. After winning in court, however, they said they preferred to leave decisions about continuing health restrictions up to local officials.
About a dozen cities and counties issued their own orders, but a few quickly rescinded them, nervous they wouldn’t hold up in the face of the supreme court ruling against the governor. On Friday, state Attorney General Josh Kaul issued an opinion meant to reassure local officials that they do, in fact, have legal authority.
All of this points to a question underpinning this debate. If a governor doesn’t have power to issue public health orders in an emergency, who does?
Some answers to that question may be legalistic. In Oregon, the case brought by churches rests on a reading of the law that holds that, while the governor’s authority is more broad during a public health crisis than during a natural disaster, that broader authority is limited to 28 days.
In most cases, the question of what a governor can do (or get away with) will be decided politically. Kansas legislators lost a court battle last month questioning Gov. Laura Kelly’s ability to ban large gatherings, including churches. The state Supreme Court ruled that the Legislature had overstepped its own authority by creating a review committee that sought to countermand the governor’s orders.
Creation of that committee itself represented a compromise earlier in the year. Some legislators wanted to try to gut Kelly’s emergency powers.
The question is coming up again this week. The Legislature will be in session on Thursday to wrap up its business for the year. Legislative leaders intend to present Kelly with a choice: Either surrender some of her standing authority during emergencies, perhaps by giving counties the ability to override state-level restrictions, or they will refuse to extend the state's current emergency declaration past Monday.
Kelly said during a radio interview this week that she supports changes to the existing emergency statute, but argued it would be a mistake to do the overhaul in a single day. "Going back on the fly is incredibly reckless," she said.
It’s hardly a coincidence that several states where the battle over emergency powers has been most heated are also those where legislators and governors seldom get along anyway, such as Michigan, Pennsylvania and Wisconsin.
In Kansas, some legislators have never fully accepted Kelly's victory. "She was elected by nine counties with 48 percent of the vote, so I think there's a legitimate concern," GOP state Sen. Dennis Pyle told the Associated Press. "People want a check on the governor's powers."
But the fact that states have been pursuing different COVID policies along different timetables is also a factor. Two months into the crisis, there’s no political consensus about the right approach to dealing with health or the spillover effects on the economy and individual liberty.
“Every issue gets caught up in this culture war,” says Phillips, the Columbia professor. “Given that this is the most important issue in American politics, I guess it was inevitable that we could go down this path. It’s just another issue that became part of the culture divide.”