Opinion: Legislature will get another shot at real emergency powers reform

Jason Mercier of the Washington Policy Center believes our system of governance is not meant to be the arbitrary rule of one behind closed doors

Jason Mercier
Washington Policy Center

A 2023 pre-filed bipartisan Senate bill is proposing common-sense reforms that would remove an illogical inconsistency in Washington’s current emergency powers law and provide meaningful legislative oversight. SB 5063 (Establishing balanced legislative oversight of gubernatorial powers during a declared emergency) is sponsored by Sen. Lynda Wilson (R) and Sen. Mark Mullet (D). According to the intent section of the bill:

“This act may be known and cited as the bipartisan approach to legislative authority necessary in continuing emergencies (BALANCE) act of 2023.”

SB 5063 would implement three important reforms to address the current lack of meaningful legislative oversight for Washington’s emergency powers law:

When in session, allow the legislature to pass a concurrent resolution terminating an emergency declaration;
When out of session and more than 90 days after an emergency declaration has been issued, all four members of the House and Senate leadership may terminate the declaration in writing; and
Harmonizing the treatment of restrictive declarations and suspension of law by requiring both actions to expire after 30 days unless extended by the legislature (when out of session all four legislative leaders in House and Senate can extend in writing).

While all of these common sense reforms proposed by SB 5063 should be enacted, the third one is the most important to ensure essential legislative oversight for all emergency actions by the executive branch. Harmonizing the existing law so that both waiving of statute and restrictive proclamations expire after 30 days unless the legislature votes to continue should not be controversial. There is no logical reason to treat those emergency actions by the Governor differently.

Whether or not you agree or disagree with every decision the Governor made during Washington’s “temporary,” 975 days-long state of emergency, the fact remains these decisions with vast impact on individuals and businesses were made behind closed doors in the executive branch.

It is true that in an emergency, governors need broad powers to act fast. Legislative bodies inevitably take longer to assemble and act than a single executive, so they temporarily delegate their power to the executive in emergencies. But these powers are supposed to be transferred for a limited period of time with meaningful legislative oversight of the decisions made.

Consider the words of Court of Appeals Judge Bernard Veljacic (appointed by Governor Inslee) in his dissent in a case concerning emergency powers this summer:

“Even so, I am not convinced that the legislature, in making the grant of authority, anticipated such a broad and lengthy imposition of emergency health measures when it first enacted chapter 43.06 RCW. It is true that our Supreme Court has recognized that the broad grant of authority ‘evidence[s] a clear intent by the legislature to delegate requisite police power to the governor in times of emergency.’ But this begs the question: ‘for how long’?

Certainly, while initial executive response to emergencies should be robust and unhindered by the burden of administrative or legislative oversight, this should not be the case over a longer period of time. Of course, in the early days of an emergency, Washingtonians would suffer if required to wait on the executive to set a legislative session, assemble the necessary quorum, and oversee a vote on a course of action. But at some point, over the long term, an emergency grows less emergent. After all, time allows for the opportunity to reflect. That same opportunity should include legislative review.

In all instances, we must be careful with such broad grants of authority. We would do well to employ a healthy skepticism of such authority upon objective consideration of who might possibly wield it at some point, or what they might deem an emergency.”

Long-lasting emergency orders should receive the input and affirmative approval of lawmakers 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.

Requiring affirmative legislative approval after a set point in time removes not a single tool from the Governor’s toolbox. All existing authority remains, the only change is that the closed-door policy making is required to be justified to the people’s legislative branch of government to continue a policy (i.e., the separations of power and checks and balances envisioned and promised under our republican form of government).

The Governor should not fear being required to make the case to lawmakers why a particular emergency restriction is appropriate to continue, and the legislature should not hide from its constitutional responsibility to debate and adopt policy. 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 of governance is not meant to be the arbitrary rule of one behind closed doors. An emergency order should never last for nearly 1,000 days unless it has received affirmative authorization for continuation by the legislative branch of government. The legislature must still act to restore the balance of powers for future use of emergency orders. SB 5063 provides a real opportunity to ensure meaningful legislative oversight of the executive’s emergency powers.

Note: The state Supreme Court has scheduled oral arguments on an emergency powers case (Gonzales, et al. v. Jay Inslee & State of Wash) for February 23, 2023.

Jason Mercier is the director of the Center for Government Reform at the Washington Policy Center.