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As Pandemic Wears On, Legislators Challenge Governors’ Authority

State lawmakers are increasingly unhappy about being sidelined, while complaining that governors have trampled civil liberties or harmed the economy. But they haven't presented a workable alternative to executive action.

Oregon Governor Kate Brown at a meeting.
Oregon Gov. Kate Brown. (Photo: Statesman Journal)
With coronavirus cases spiking, Oregon Gov. Kate Brown recently set a limit on indoor gatherings of no more than six people, including Thanksgiving. She went so far as to suggest that neighbors should call the police if they witness violations. 

“This is no different than what happens if there's a party down the street and it's keeping everyone awake,” Brown said last week. “What do neighbors do? They call law enforcement because it's too noisy. This is just like that. It's like a violation of a noise ordinance.” 

Brown’s stance was met with derision, including a comment from Texas Gov. Greg Abbott, who called it “un-American.” 

For most of the year, governors have sought to protect residents against an infectious disease that has already killed more than a quarter-million people, while crafting policies people would actually comply with. Lauded at the start of the pandemic as heroes, they’ve since faced unending lawsuits from businesses and church groups challenging their authority. Dozens of sheriffs have announced that they won’t enforce mask mandates or other health orders issued by governors. A number of governors have faced recall efforts and, in a few cases, been the target of kidnapping plots. 

In a decision issued late Wednesday, the U.S. Supreme Court blocked restrictions imposed by New York Gov. Andrew Cuomo limiting the size of religious gatherings. "The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment's guarantee of religious liberty," according to the unsigned majority opinion.


Governors also face increasing pressure from their nominal partners in governing: state legislators. When the coronavirus pandemic took root in the U.S. back in March, lawmakers drafted some last-minute bills and, for the most part, headed home, leaving governors in charge. They’ve long since rethought that position, angry at being relegated to the sidelines and joining or even leading the chorus of critics who complain governors have trampled civil liberties or harmed the economy.

After all, it’s one thing for a governor to assume control of the state response during a “normal” crisis, such as a hurricane or a tornado, when the immediate repercussions last a matter of days. COVID-19 has been upending American life for more than eight months now. Despite breakthrough developments in vaccines, COVID-19 will continue to steal thousands of lives for several months to come. 

Given that timeframe, perhaps it was inevitable that legislators would demand more of a say. “It doesn’t surprise me to see legislatures wanting a bigger role as the length of the crisis grows,” says Justin Phillips, a political scientist at Columbia University.

Governors such as Cuomo and Gavin Newsom of California have done their own cause no good in recent days. Newsom has taken heat for attending an unmasked dinner at a fancy Napa Valley restaurant. Cuomo’s office announced Tuesday he will work through Thanksgiving. That followed criticism for Cuomo saying he’d host guests for the holiday, despite telling New Yorkers they should only celebrate with their immediate families. 

Denver Mayor Michael Hancock issued an apology Wednesday after flying out of state for Thanksgiving, hours after urging residents to avoid Thanksgiving travel.

Even before Brown made her “call-the-cops” comment, Oregon legislators were chafing under her command. Dennis Linthicum, the Republican leader in the state Senate, called her limits on the size of family gatherings unconstitutional. “The government does not have the constitutional authority to dictate how private citizens can or cannot celebrate birthdays, weddings, holidays or any other celebrations,” he said.

Much of the pushback against governors has been partisan in nature. But the day before Linthicum’s complaint, state House Speaker Tina Kotek asked Brown, her fellow Democrat, to call the Legislature into special session to deal with the pandemic and its effects on issues such as housing. Kotek wants the session to be declared under the state’s “catastrophic emergency” law, so that the Legislature can meet remotely. 

That points to one of the dynamics that makes it difficult to bring legislators into the decision-making process during the ever-evolving pandemic. Naturally, they want to be consulted, but usually they’re not even in the capitol. “The legislature is supposed to set policy, taking the longer view,” says John Greabe, a law professor at the University of New Hampshire. “It’s not designed to react quickly to emerging circumstances.”

Legislators carp, but they haven’t figured out a way to play more of a role while also respecting the fact that it’s normal for the governor and the executive branch to operate the state. And, while governors can issue new orders as fast as they can type, legislatures tend to be slow and reactive, which doesn't make them ideal bodies for responding with the speed a crisis demands.

“What is new about the nature of this emergency is that it has forced so many legislatures to leave the battlefield, suspending sessions or interim hearings because of the pandemic,” says Thad Kousser, a political scientist at the University of California, San Diego. “This both makes it very difficult for governors to consult with legislators dispersed across a state, making unilateral action more necessary, 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.”

Challenging Governors

During the pandemic, governors have gotten used to being called “dictators,” even by legislative leaders and mayors.

It’s true that executive branch leaders, once they assume certain powers, seldom give them back. Greabe notes that Congress approved use of military force shortly after the Sept. 11 attacks, which presidents have taken as a license for action abroad for nearly 20 years now. “It’s an interesting idea that these emergencies don’t have an expiration date,” he says.

Not wanting to allow governors to maintain similarly open-ended authority, a number of legislators have attempted or plan to curb their emergency powers. Ahead of last month’s special session, Louisiana House Majority Leader Blake Miguez said that “the major issue is going to be challenging the governor’s emergency powers and the legislature’s yearning to be the voice of the people, independent of the governor.” 

It didn’t work out that way. Legislators couldn’t reach agreement among themselves about how to curb Gov. John Bel Edwards’ powers. Only one bill to allow legislators to amend emergency orders made it to his desk, but without enough support to survive his veto.

Earlier this year, Minnesota House Speaker Melissa Hortman said it would be tough to carve out the proper pandemic role for legislators. They need to weigh in on major policy matters, she said, but can’t steer the ship of the state through every turn. 

“We’re all trying find our way about what decisions need to be taken through executive authority and what should be worked through legislation,” she said. “In an emergency, so many decisions have to be made fast. There isn’t time for the legislative process. Bringing people in and finding compromise, that takes time.”

Minnesota is the only state with a divided legislature. While the GOP-controlled Senate voted to strip Gov. Tim Walz of his emergency authority, the Democratic House was having none of it.

That doesn’t mean the Senate was powerless. In response to Walz extending his peacetime emergency powers, the Senate failed to confirm his commerce and labor commissioners, in effect firing them. 

“I think a healthy debate on the COVID response and approach is what we are there to do,” says Democratic state Sen. Matt Little. “But just because you've lost a debate doesn't mean you should take it out on qualified commissioners that have been in the position for almost two years now. It's crass and petty.”

No Real Alternative

Back in May, the Wisconsin Supreme Court ruled that Gov. Tony Evers lacked the authority to issue stay-at-home orders in response to the pandemic, in a case brought by the Legislature.

At the time, legislators assured the court that they would craft policies that could stand up to scrutiny. But the legislature hasn’t even met since April — not counting a special session Evers called in August, when the legislative chambers gaveled themselves shut in under a minute.

On Nov. 16, the court heard a case challenging a new set of orders from Evers, including a mask mandate. Under Wisconsin law, governors have emergency authority lasting 60 days, after which time they must receive an extension from the Legislature. Evers argues that he has issued different orders in response to different circumstances.

Across the lake in Michigan, the state supreme court last month struck down a 75-year-old law that was the underpinning for Gov. Gretchen Whitmer’s coronavirus orders. Legislators said they would take up legislation to clarify the state’s COVID-19 response in their current session, but have yet to reach any agreement. Some members of the state House filed a resolution to impeach Whitmer, but Speaker Lee Chatfield said that idea was a non-starter.

In both Michigan and Wisconsin, health directors have issued regulations to replace, at least partially, the orders from the governors that have been struck down. With Wisconsin being one of the hardest-hit states during this stage of the pandemic, the Wisconsin Hospital Association sent a letter on Nov. 18 to Evers and legislative leaders begging them to work together to address what it described as the state’s worst health crisis in three generations. 

Not Just Partisan

The most heated conflicts between governors and legislators have taken place, unsurprisingly, in states with divided control. But that's not true for all the conflicts.

Texas Democrats have complained that Gov. Abbott has been slow to spend federal funds provided under the CARES Act, but it was five Republican lawmakers who sued him for awarding a $295 million contact tracing contract without legislative approval. 

In Iowa, Gov. Kim Reynolds has taken a relatively laissez-faire approach to the pandemic, but as soon as she issued a mask mandate and limited the number of people who could gather indoors, she faced complaints from fellow Republicans. “I will be working with other like-minded legislators in the weeks to come to review emergency powers and what changes might be needed, including requiring legislative approval for declared emergencies lasting over a certain period of time,” Steven Holt, who chairs the House Judiciary Committee, posted on Facebook. 

All year, Utah Gov. Gary Herbert has had to fend off legislation introduced by his fellow Republicans looking to amend the state’s Emergency Act and curb his powers. At this point, no legislation is expected until next year, by which time Herbert will have retired from office.

At the moment, most legislatures aren’t meeting, either because they had short sessions this year, or because there have been COVID-19 outbreaks among their own ranks. Deciding whether and how to limit gubernatorial authority will likely be a key issue to watch in 2021.

In Kentucky, Republican legislators have complained about the latest round of restrictions imposed by Democratic Gov. Andy Beshear. “Working with the legislature means more than calling us an hour before making his pre-determined edicts public,” House Speaker David Osborne said last week. “While we take this virus seriously, we will not be cover for his unilateral decision-making.”

The Kentucky Senate voted to strip the attorney general’s office of certain powers while Beshear held that office. The House didn’t agree, but it might be a different story when it comes to handcuffing Beshear as governor.

“Republicans cannot wait,” says Dewey Clayton, a political scientist at the University of Louisville. “They have already been screaming that Beshear has overstepped his authority.”

Alan Greenblatt is the editor of Governing. He can be found on Twitter at @AlanGreenblatt.
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