Washington lawmakers this year eschewed the opportunity to add some balance to state government. But the coronavirus pandemic has illuminated the issue and should compel the Legislature to reconsider it in the future.
Since the beginning of the pandemic more than a year ago, Gov. Jay Inslee – with input from his staff – has unilaterally made decisions about school closures, business closures, and items relating to public health.
That is his duty as governor; Inslee’s shutdown orders and mask orders withstood myriad legal challenges last year, with one federal judge writing, “The plain meaning of the governor’s statutory authority to proclaim a state of emergency in the event of a ‘public disorder’ clearly encompasses an outbreak of pandemic disease.”
According to the Maine Policy Institute, Washington ranks among the bottom four states in terms of governmental balance of power. Washington and a handful of other states “bestow on their governors the sole authority to determine when and where an emergency exists, and when an emergency ceases to exist.”
In the early days of the pandemic, that was beneficial. Quick, decisive action was required, and Inslee wisely sought input from immunologists and pandemic experts to assess what we were facing in a previously unknown disease.
But the thought of giving a governor indefinite emergency powers is disturbing, and it belies the notion of representative government. The public – through their elected legislators – should have a say in the state’s continuing response to the pandemic. It also should have a say in any future emergencies, once the initial shock has subsided.
A state of emergency should be limited to 90 days; after that, renewal should require legislative approval – even if a special session is needed.
Imagine, for a moment, if a governor decided that gun violence in the state is an emergency and declared an indefinite halt to all gun sales. Or if another governor decided that abortion was an emergency and closed reproductive health clinics.
Either scenario is extreme and would invite numerous court challenges, but the absurd examples demonstrate the need to strengthen the checks and balances in state government. No governor of either party should have unfettered power.
Numerous states are weighing gubernatorial power in the wake of varying responses to the pandemic. According to the National Conference of State Legislatures, lawmakers in 45 states have introduced more than 300 bills relating to oversight of executive actions.
In Washington, after the initial response to the pandemic and as additional information about the disease became available, Inslee missed an ideal opportunity to engage with lawmakers – and therefore the public. He declined to call a special session late in 2020, missing a chance for legislative input on the response to the disease.
Several bills were introduced in this year’s Legislature to address the governor’s power. They received little attention, with Democrats holding a majority in both chambers and unlikely to challenge the power of a Democratic governor.
But the issue goes beyond the current Legislature and the sitting governor; it speaks to the balance between the branches of government and the question of how long a governor should be allowed to declare an emergency.
Lawmakers should keep that in mind once the pandemic passes.