Over the past year, states have issued hundreds of rule changes in response to the coronavirus pandemic, covering issues from public health and safety to business protocols to election procedures.
But one consequence of some of these emergency orders has been a shift in the balance of power at the state level. Ballotpedia reported Thursday that eight states have seen the governor's authority weakened by Covid-related legislation.
Governors generally have the authority to declare a state of emergency in cases of natural disasters, disease epidemics and other threats to public health. And in the early days of the pandemic, nearly all states issued lockdown or stay-at-home orders.
But in the months following, some states saw conflict between the executive and legislative branches on how to proceed with the orders. Lawmakers introduced hundreds of bills to limit gubernatorial emergency powers, and ultimately 10 were enacted in eight states.
Surprisingly, in most of those eight states, the same political party controlled the governorship and the legislature. Three were run by Republicans: Arkansas, Ohio and Utah. Two were Democratic: Colorado and New York. And the remaining three have Democratic governors and Republican-majority legislatures: Kansas, Kentucky and Pennsylvania.
Here is a rundown of how these eight states have placed new limits on the governor's emergency powers authority:
Last month, the Legislature passed and Gov. Asa Hutchinson signed legislation that limits statewide emergency declarations to 60 days unless extended by the governor. The new law also allows lawmakers to block any state of emergency extensions made by the governor.
Last summer, the General Assembly passed and Gov. Jared Polis signed a bill that requires the governor to communicate with and provide information to state lawmakers following an emergency declaration.
Two new laws regarding emergency powers have been enacted in the last year in Kansas. The first, approved last summer, extended the coronavirus state of emergency, while banning Gov. Laura Kelly from declaring any new states of emergency in 2020 without first receiving approval from the state finance council. The law also limits how long the governor can close businesses and terminates emergency proclamations after 15 days unless extended by the Legislature.
The second measure also extended Kansas's state of emergency, while further limiting the governor's emergency powers. It allows anyone burdened by executive order, school board policy or county health directive to file a civil action in court, which must be heard within 72 hours. The law also empowers the Legislative Coordinating Council to override gubernatorial executive orders.
In February, the Republican-majority General Assembly enacted two new restrictive bills by voting to override Democatic Gov. Andy Beshear's vetoes. The first law limits a governor's emergency orders to 30 days unless extended by the legislature. It also requires the governor to receive approval from the attorney general before suspending a statute via executive order during an emergency.
The second law grants legislative committees more oversight of the governor's emergency regulations and requires public input for some orders.
Last month, the Legislature and Gov. Andrew Cuomo approved a new law that repeals a provision of a law passed last year that extended the governor's executive order powers during a pandemic. The new law also allows the Legislature to revoke any executive order through concurrent resolution. It also requires the governor to create a searchable website that tracks all executive actions made during a pandemic.
The Legislature voted last month to override Gov. Mike DeWine's veto of a bill that restricts the governor's authority over public health orders. The new measure allows the Legislature to cancel public health orders after 30 days and requires the governor to renew such orders every 60 days. It also establishes a legislative panel overseeing the governor's public health orders.
Last summer, the Pennsylvania General Assembly enacted a law prohibiting the governor from directing agencies to ignore public records requests during states of emergency. At the time, Democratic Gov. Tom Wolf said he disagreed with the bill, but would "err on the side of transparency" and allow it to become law without his signature.
A constitutional amendment related to emergency declarations was also certified for the May 18 ballot. If approved by voters, the amendment would limit the governor's emergency declarations to 21 days unless the legislature extends them. It would also allow the General Assembly to pass a resolution, without needing the governor's signature, to extend or terminate an executive order during an emergency.
Last summer, the Legislature and Gov. Gary Herbert approved a measure that requires the governor to notify the legislative pandemic response team within 24 hours of taking any executive actions in response to a public health crisis, unless there is imminent threat to life or property. The law also allows the Legislature to issue a joint resolution to block any pandemic executive actions.
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As a momentous election draws closer, government leaders and law enforcement agencies are preparing for a contested election and ensuing civil unrest. The FBI and Department of Justice are getting ready for election-related violence. And National Guard leaders have assembled rapid-response forces in two states to deal with potential disruptions.
Joint Chiefs of Staff Chairman Gen. Mark Milley has been unequivocal that the military should play "no role" in a U.S. election. "Zero," he said. In fact, it is a federal crime to deploy troops to polling places. But what if there are protests, including when voters have already cast their ballots but the final results remain uncertain?
To be clear, if there is any election unrest, the federal government should not be the one handling it. Elections are run at the local and state levels, so those law enforcement agencies should respond. Yet there's concern the president and his allies may try to interfere with election outcomes by deploying — or threatening to deploy — military forces and turn American streets into "battle spaces."
Let's step back to Lafayette Square to add some context. On June 1, National Guard troops were used to clear civil rights protesters from the square for a presidential photo-op. The Trump administration asked states to send National Guard troops into D.C. to crack down on these protests. Over 98 percent of the 3,800 National Guardsmen deployed came from states whose Republican governors answered Trump's call. This "red-state army" of out-of-state National Guard troops was operating under a "hybrid status," which means they're on federally funded missions while under state governors' command. Because National Guardsmen in hybrid status remain under state control, they are exempt from posse comitatus, the principle that the U.S. military cannot perform domestic law enforcement functions unless expressly authorized by law. But when National Guardsmen also report to a federal chain of command, as Defense Secretary Mark Esper admitted they did in D.C., these troops are subject to posse comitatus — unless the president properly invokes some other authority, such as the Insurrection Act. Yet, by Attorney General William Barr's own account, National Guard troops' mission in DC included quintessential law enforcement duties, including "detention" and "search."
President Trump has said this could happen again, promising that post-election protests would be "put ... down very quickly." It would be improper to use the National Guard or military (or other federal law enforcement) to patrol the polls or retaliate against protesters. So what happens if the president or his allies try anyway?
We can learn from what happened in Lafayette Square and beyond. Then, the troops withdrew from Washington within a few weeks. But the law didn't precipitate their retreat. Public opprobrium did. Political leaders and the public will have to fight back.
There are both legal and political ways that state and local leaders can respond. Concerning the National Guard at polling places, governors and National Guard leaders should commit to upholding laws that apply to the U.S. military. Governors, state attorneys general and mayors should broadcast the message early that it's unlawful for the president to use the military or federal agents to interfere with elections. State and local leaders can also create political pressure on key decision-makers. Just as Milley vociferously denounced the idea that the military should play any role in our election, governors and mayors can denounce improper deployment of federal law enforcement. Finally, states and cities can call on courts to intervene.
Meanwhile, Sen. Tom Udall and Rep. Jim McGovern are working on legislation to close the statutory loophole Barr exploited to evade laws to use the military to police Americans.
One of the lessons of Lafayette Square is that public outrage and protests may be a critical check on the use of the force against protesters. If, as President Trump has threatened, the military is unlawfully deployed against U.S. citizens exercising free speech, Americans must stand with protesters to preserve the rights for all.
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The Brennan Center for Justice published a concise primer on the use of U.S. troops, other federal employees (including the Justice Department), militias or others to watch polls or oversee voting, the way President Trump has suggested that his "army" of supporters might do.
The bottom line is that in almost all cases, federal laws prohibit the use of troops or agencies like DOJ or the Department of Homeland Security to enforce election security. The president couldn't deploy the National Guard because when they're under federal command, National Guard troops are considered part of the U.S. military.
State and local law enforcement can be used at polling places in very restricted ways, but never under the direction of the president or the federal government. Off-duty police officers, militias or vigilantes are not OK.
The Brennan Center conclusion: "Federal and state laws clearly prohibit any deployment of the military, law enforcement, or vigilantes to the polls to intimidate voters or engage in any operation unrelated to maintaining the peace while elections are being held. The president's suggestions that law enforcement should act inappropriately or that vigilantes will storm the polls are simply designed to discourage voters, particularly voters of color, from voting and to undermine faith in our elections."
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House Democrats on Wednesday unveiled a democracy reform plan, focused on a rebalancing of power to bolster Congress at the expense of the presidency, signaling it will be an early priority if their party wins control of both the White House and the entire Capitol this fall.
The legislative outline was compiled without any input from Republicans, underscoring its purpose at least in the short term as a campaign messaging manifesto.
But the plan nonetheless makes clear that Democrats would seek to move swiftly in a Joe Biden administration to reverse many of what they see as a sweeping collection of checks-and-balances abuses by President Trump.
"These reforms are necessary not only because of the abuses of this president, but because the foundation of our democracy is the rule of law and that foundation is deeply at risk," the seven House committee chairmen who assembled the package said in a statement. "Our democracy is not self-effectuating — it takes work and a commitment to guard it against those who would undermine it, whether foreign or domestic."
The proposals, all of them direct responses to Trump's varied ways of challenging democratic norms over the past four years, include:
- Curbing the president's powers to grant pardons and declare national emergencies.
- Tightening ethics rules to prevent federal officials from using their government jobs to enrich themselves.
- Creating a streamlined system for federal courts to referee subpoena disputes between the executive and legislative branches.
- Strengthening protections for government whistleblowers and the supposed-to-be-independent inspectors general at departments and agencies.
- Limiting White House involvement in law enforcement decision-making at the Justice Department.
- Enhancing laws requiring executive branch officials to spend money the way Congress appropriated and barring them from overt political activities.
- Bolstering safeguards against foreign interference in elections, in part by making candidates report such meddling to the FBI.
- Exempting a president's or vice president's time in office from the statute of limitations for any federal crime.
Democrats said their package is designed as a complement to, and not a replacement for, the sweeping election administration, campaign finance and government ethics legislation the House passed last year.
Known as HR 1, it would have faced a Trump veto had it not immediately died in the Republican Senate — and this new package would as well, which is why its prospects are entirely reliant not only on Joe Biden winning the presidency but also on his party taking over the Senate by winning at least three seats.
If that happens, the Democrats would be positioned to advance the most comprehensive set of fix-the-system proposals in the 45 years since Watergate forced the resignation of President Richard Nixon, although probably not without ending the GOP minority's power to block legislation in the Senate.
The plan was assembled before Justice Ruth Bader Ginsburg died last week and Trump quickly secured almost unified GOP support for rushing her Supreme Court replacement to confirmation this fall — highlighting the way the Senate has all but abandoned its role as a deliberative body in favor of a more parliament-like posture and raising fresh balance-of-power questions about the future of such matters as the legislative filibuster and presidential dominance over the federal courts.
Progressive good-government groups rushed to embrace the package, while Republicans on Capitol Hill and the more bipartisan democracy reform organizations essentially ignored it.
It was introduced almost exactly a year after Speaker Nancy Pelosi announced the House would pursue Trump's impeachment, an effort which ended in his acquittal by the Senate — and which has almost no resonance in a presidential campaign that's now largely focused on the administration's management of the coronavirus and an economy crippled by the pandemic.
Pelosi unveiled the bill along with the seven gavel-holders: California's Adam Schiff of the Intelligence Committee, New York's Jerrold Nadler (Judiciary), New York's Carolyn Maloney (Oversight and Reform), Kentucky's John Yarmuth (Budget), California's Zoe Lofgren (House Administration), New York's Eliot Engel (Foreign Affairs) and Massachusetts' Richard Neal (Ways and Means).
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