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Rein in the Governor’s Reign
North Carolina must revisit its emergency powers law
Every time Gov. Roy Cooper announces a press conference, I can’t stop myself from singing the last few lines of a “Hamilton” song.
Twitter, Facebook and the media get all in a tizzy when a gubernatorial press conference is coming, and for good reason. With COVID-19, life as we know it can all change in unpredictable ways every time Gov. Cooper takes the podium at the Emergency Operations Center.
Since Gov. Cooper declared a state of emergency on March 10, he has virtually unlimited ability to change how we live. He can force people to stay in their homes, shutter schools, close businesses or restrict their hours, end gatherings, or any combination thereof.
The Governor can change these measures at any moment, with or without notice. His decrees have the force of law, and cannot be challenged.
Set aside for a moment how you feel about the specific restrictions Gov. Cooper has implemented and ask: Should one man have this much power?
Should a Governor, no matter how popular, have unfettered control over our day-to-day lives?
As the COVID pandemic wears on, the answer is increasingly becoming clear: No. Not indefinitely. Not completely.
It’s time to re-write North Carolina’s emergency powers law for our new reality.
Our current law is too broad. Luckily, there are a few simple provisions we can add that are already on the books in other states that would better serve the people of North Carolina.
A poorly written law
The source of the Governor’s unlimited power is North Carolina’s Emergency Management Act. The law sets up “disasters” and “emergencies,” with the former generally preceding the latter. Disasters generally last 60 days and allow for different types of relief money to flow to where they’re needed.
But the act also gives the Governor or the General Assembly the ability to declare a state of emergency, which remains in effect until whoever implemented it declares it to be over.
The law then spells out special powers that the Governor has during these emergencies.
Subsection “A” lists things the Governor can do on his own. These include marshaling state resources, directing law enforcement, and firing public officials who aren’t carrying out their duties.
Then the law goes into powers the Governor has with the concurrence of the Council of State. These include mandatory evacuations, rationing and price freezing, regulating traffic and controlling public gatherings.
All of that is normal, long-standing policy. But the Emergency Management Act then includes a subsection “C” that basically renders everything above it moot. Here’s the crucial part:
“[D]uring a gubernatorially or legislatively declared state of emergency, if the Governor determines that local control of the emergency is insufficient to assure adequate protection for lives and property … the Governor has the following powers: To impose by declaration prohibitions and restrictions in the emergency area. These prohibitions and restrictions may, in the Governor's discretion, as appropriate to deal with the emergency, impose any of the types of prohibitions and restrictions … and may amend or rescind any prohibitions and restrictions imposed by local authorities…”
To put it in layman’s terms: If the Governor believes that local governments can’t handle the emergency, the Governor can impose any restrictions, controls or mandates he wants.
There’s no oversight, no necessary justification and no expiration. The powers are complete and last as long as the Governor decides he wants them.
It’s not just me reading it this way. State courts validated this interpretation of the law in August.
“Modernization” gone wrong
As it turns out, this poorly written law has only given the Governor absolute power since 2012. That’s when a new law went into effect that rewrote North Carolina’s Emergency Management Act.
Though the GOP had taken over the General Assembly by then, this law was a Democrat creation — authored by Rep. Grier Martin (D-Wake) and signed into law by then-Gov. Bev Perdue.
Called the “Modernize NC Emergency Management Act," the law largely left the state’s 1970s-era emergency law in place but for some reorganization. The new law also delineated between an “emergency” and a “disaster” for the first time.
But the law also added in subsection “C” mentioned above. Earlier versions of the law did not include this catch-all power abrogation. Instead, the Governor needed the Council of State to exercise the broadest reach of emergency power.
An obvious fix
Going back to Council of State concurrence would be a healthy step. But there’s a simpler, more elegant solution: Put an end date on states of emergency, and require the General Assembly to sign off on extending it.
Our emergency management law does not envision an emergency that never ends. But we’re now nine months into one with no legal end date. Remember, the emergency lasts as long as the Governor decrees.
This is unusual across the country. Very few states use unlimited state of emergency declarations, and during COVID-19, these states have renewed their declarations as many as 11 times.
Colorado law, for example, allows a state of emergency to last 30 days, after which it must be renewed.
That is a reasonable period of time. North Carolina should set its state of emergency declarations at 30 days, with the ability to renew.
But North Carolina should add one more check on this power — requiring legislative approval to extend a state of emergency.
This isn’t an untested proposal. Alaska, Kansas, Utah, and Washington all have similar laws that require their state legislatures to approve a Governor’s state of emergency to last longer than 30 days.
It’s an obvious fix for an unprecedented problem.
North Carolina has always been among the states most wary of executive power. Governors couldn’t run for a second term until 1977, and we were the last state in the country to give the Governor veto power (in 1996). Our state also seems to value divided government, judging by the results of the last election.
That’s why it’s so surprising that our state gives the Governor such broad, unchecked emergency powers.
It’s time for the General Assembly to rein in this reign during this legislative session.
Charlotte-Mecklenburg Schools goes back to remote learning. The vote in North Carolina’s largest county came despite health officials telling the school board that there is no COVID spread through schools and Superintendent Earnest Winston reporting that the percentage of children failing has spiked (as board member Sean Strain pointed out). The new policy comes just six weeks after CMS resumed a two-day-a-week in-person school arrangement.
This sets up an unacceptably bad situation for children. The ever-changing policies make it impossible for parents, teachers or administrators to plan. Not every student learns in the same way, and schools have no ability to adapt in time to serve their students before everything changes again. What’s more, thousands of students with disabilities have Individualized Education Plans (IEPs) that are basically worthless without stability.
This is real leadership. Speaking of schools: North Carolina has a devastating lack of leadership on the issue. It doesn’t have to be this way. We got a great example of what leadership looks like from the Governor of Rhode Island (she’s a Democrat, by the way). She called on school districts to try harder to have students learning in the school building. “Those of you who are throwing in the towel on our kids and going virtual: I think it’s a shame,” she said. “You’re letting the children down, and I don’t see any reason for it. So I’d ask you to rethink it.”
This is how leadership works in our system of government. You allow local governments to make decisions, but you set a vision and expectations for them. Gov. Cooper, take notice.
N.C. Sen. Jeff Jackson appears to be all-in on Senate in 2022. The Charlotte Democrat, says he will be discussing a potential campaign with his wife over the holidays but is already tweeting as if he’s in the race for good. Jackson won’t clear the field on the Democratic side, but he will be extremely tough to beat. He fits the mold the national party has for swing-state statewide candidates — white, male, military background — plus he’s a gifted communicator with a remarkable work ethic.