It’s time to rein in the governor’s emergency powers
February 10, 2022
In 2020, 2,369 restaurants and bars in Washington state closed their doors permanently. That’s 2,369 places where people earned a living, where locals met up with friends and family, and where a business owner poured the sweat of their life in the hopes of making it in a tough industry.
However, many of those small businesses may have closed not due to a lack of customers or poor management, but due to Governor Jay Inslee’s state of emergency declaration preventing them from opening because they weren’t deemed “essential.”
However, that doesn’t fully convey the economic toll, because restaurants that remained operational still had to let workers go. Testifying on a legislative bill during the 2021 session, Brian McMenamin told legislators that he had to lay off 2,000 of 3,000 employees he had working at his chain of restaurants in western Washington. Thanks to additional federal unemployment money, the mass layoffs also exacerbated a staff shortage crisis for restaurants and other employers trying to hire, as thousands of workers became eligible for benefits that paid as well or better than those jobs.
Decisions with such monumental consequences should not be made by one person behind closed doors, but that is what current state law allows. This is a severe accountability flaw in our system that needs correction. SB 5909 seeks to bring some balance back between the governor’s office and the legislative branch during times of emergency.
It is imperative that you Tell Your Legislators to support these bills and Restore The Checks And Balances Between The Government Branches.
People can debate the merits of policies implemented over the past two years, but that’s the rub. There was no debate prior to these decisions. Under good governance, legislators would have discussed and amended them based on feedback from their constituents and then took an official vote. Thanks to existing Washington state law, the governor can unilaterally declare a state of emergency granting the executive enormous powers, and only they decide when the emergency ends.
According to an analysis of all 50 states’ laws on emergency executive powers, Washington ranks at the bottom in terms of limits on governor emergency powers. In states like Minnesota, the governor must call a special session if an emergency lasts longer than 30 days.
So far, the current state of emergency in our state has been ongoing for nearly two years. During that time many statewide policies were imposed by the governor’s office with no input from the legislative branch that affected not just businesses, but also whether kids could go to their schools and actually see their friends and peers. Meanwhile, Washington lags other Democrat-run states in reopening and ending mask mandates.
This is not how the state of Washington is supposed to function. In a constitutional republic, the executive enforces laws passed by the legislative branch. The governor does not make laws, but upholds them. Having one person make all the critical decisions not only deprives people of their representative voice, but erroneously presumes that a single individual has all the knowledge and wisdom to create a one-size-fits-all policy applying to millions of people with diverse needs and priorities.
The state’s emergency powers law was intended for times when there’s a breakdown in communication such as a natural disaster and an assembly of the legislature is impossible. In such instances, the executive should be able to make unilaterally decisions to ensure civil order is maintained.
However, at no point has there been a breakdown in technology preventing the governor from reaching the legislature or having them convene. Had lawmakers been allowed to participate in these decisions, it may very well have resulted in similar public policies regarding what businesses could remain open and which ones needed to remain closed. Yet, the difference is that that process would have been open, transparent, and given those affected a chance to voice their concerns and objections before anything was enacted. Also, it would give voters a chance to hold their elected officials accountable for how they voted. The current method of governing allows them to avoid a core responsibility of theirs.
Recently the state Senate voted to make pickleball the official state sport, a proposal that the public was permitted to testify on during public hearings. If citizen input is warranted on something that trivial, then it’s all the more vital that their opinions be heard when government actions affect their livelihoods and financial security.
SB 5909 and HB 1772 would rectify this flaw in state law by limiting how long the governor can maintain a state of emergency without some form of legislative involvement. SB 5909 is on the cusp of a Senate floor vote. Unfortunately, HB 1772 did not advance from its original committee prior to the cutoff date.
However, there is still opportunity to incorporate parts of HB 1772’s language into SB 5909 before its final approval.
The legislature should pass by a veto-proof majority a law that fundamentally restricts a governor’s ability to unliteral declare a state of emergency to within a specific timeframe.
This isn’t about who holds emergency powers, but whether anyone of any political party should have this much power.
The answer is a resounding No.
Such a concept is contrary to every aspect of good governance and puts Washington apart from other states throughout the nation that either have restrictions or have moved to restrict the ability of their executives to impose state of emergencies.
Commenting on these bills, Washington Policy Center Government Reform Director Jason Mercier recently wrote:
Long lasting emergency orders should receive the input of 147 legislators from across the state following a public process, allowing the perfection of policies through a collaborative weighing of all the options, alternatives and tradeoffs. This is precisely why the people’s legislative branch of government exists – to deliberate and provide guidance to the executive branch on what policies should be in place and how to implement them.
At some point the executive branch should be required to receive permission from the legislative branch to continue making far-reaching policies under an emergency order. Our system is not meant to be the arbitrary rule of one behind closed doors. It is time to end governance by press conference and return to the normal public legislative process.
Contact your legislator today and demand they enact emergency power reform legislation now/during this legislative session that adjourns next month!