By Thom Little, Ph.D.
On February 29, 2020, Washington Governor Jay Inslee declared a state of emergency in
response to new cases of COVID-19, directing state agencies to use all resources necessary to
prepare for and respond to the outbreak. Four days later, on March 4, California Governor
Gavin Newsome followed suit, initiating a cavalcade of states doing the same. Within less than
two weeks, governors in all fifty states declared states of emergency concluding with Oklahoma
and West Virginia on March 16th.
Such declarations give governors and their administration extra powers to deal with the
emergency situation and also enable them to access significant federal assistance if necessary.
The nature and impact of those declarations varied significantly from state to state. In some
states, they were accompanied by executive orders implementing “stay at home” or “shelter in
place” orders, shuttering of nonessential businesses and limits on public gatherings. In other
states, where governors chose not to initially use their extraordinary powers, such declarations
were intended primarily as a way to ease access to federal funds and had a limited impact on
the daily lives of their citizens.
Initially, both the public and the legislative branch of state government supported the
declarations and many of the executive orders that accompanied them. However, as days
turned into weeks and weeks turned to months, voters and legislators in many states began to
question their wisdom, and sometimes the constitutionality. In particular, many state legislative
leaders began to raise concerns that these declarations ceded too much power to the executive
branch at the expense of the checks and balances that our three-branch system of government
was designed to provide.
Many legislative leaders asked themselves and others if they had any legal recourse to overturn
or limit the length or extent of the declarations. A review of the statutes and constitutional
directives relative to executive emergency powers across the country reveals, not surprisingly,
that the relative powers of the legislative branch vary significantly across the fifty states.
Once a state of emergency has been declared, there are just two areas where the legislature
may or may not be involved: in the extension or termination of the declaration. Let’s look first
at the degree to which the state legislature may extend such declarations. In many states, initial
state of emergency declarations come with a time limit of 15, 30 or sixty days. Unless extended,
they will terminate automatically at the end of that designated period. While the executive has
the power to extend the declaration in all fifty states, in eight of the fifty states, the state
legislature, usually with a majority vote, can choose to extend the declaration for a period of
fifteen days (Kansas and South Carolina), twenty-eight days (Michigan), thirty day (Alaska, Utah
and Wisconsin) or sixty days (Alabama and North Carolina). In the remaining forty-two states,
the state legislature has no formal role in extending a declared state of emergency.
However, the hand of the legislature is significantly stronger when it comes to terminating such
state of emergencies. In almost sixty percent (twenty-nine states), statutes provide a method
by which the state legislature can terminate a state or emergency even if it was declared by the
governor. The most common method is by a concurrent resolution of the two chambers (16
states). In six states, the statutes specify that the declaration can be terminated by a joint
resolution, while another three require a “legislative resolution,” Texas requires a “legislative
statute” and Minnesota requires “a majority vote of each house of the legislature.” In
Connecticut, a declaration can be terminated by a majority vote of a joint legislative committee
consisting of the President Pro Tempore of the Senate, the Speaker of the House of
Representatives and the majority and minority leaders of both houses of the General Assembly,
provided at least one of the minority leaders votes for such disapproval. In Louisiana, such a
declaration may be terminated by “petition signed by a surviving majority of either house.” I
guess they are preparing for one serious emergency!
Interestingly, according to Dr. Gregory Sunshine of the Centers for Disease Control and
Prevention, who provided the data used for this blog, he is aware of no case where a state
legislature terminated a state of emergency declared by a governor.