Reform the emergency powers used by Gov. Inslee

As legislature after legislature across the country spent the past year working to restore the balance of power and ensure some type of legislative oversight of emergency powers, Washington’s Democratic legislative leadership prevented any serious review or floor vote on the numerous bipartisan reform bills proposed.

Based on a recent Senate work session, our lawmakers may be finally ready to retain their important role in how we are governed.

On Nov. 16, the Senate State Government & Elections Committee held a work session titled “Legislative role during state emergencies.” The committee members heard three presentations: A staff update on emergency powers statutes; update from the National Conference on State Legislatures on legislative oversight of emergency executive powers; and my presentation, “Requiring Legislative Oversight of Emergency Powers.”

As I told the committee, 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.

For example, in Wisconsin, a state of emergency cannot exceed 60 days unless it is extended by a joint resolution of the legislature, and in Minnesota, a governor must call a special session if a “peace time” emergency lasts longer than 30 days.

When situations last for extended periods, longer-term policies need to be implemented and a legislature needs to debate risks, benefits and trade-offs of various approaches. Lawmakers may end up passing the very policies the governor would prefer to see implemented, but they do it after deliberation as representatives of the people and do it in a public process.

It’s the legislature, not the governor, that is charged with making law, and the governor who is charged with implementing the laws passed by the legislature.

Washington, however, has very weak statutory emergency powers oversight, according to a national study: “Vermont, Washington, Ohio and Hawaii are among the worst-ranking states because they bestow on their governors the sole authority to determine when and where an emergency exists, and when an emergency ceases to exist.”   

Interestingly, earlier this month the Hawaii Speaker of the House announced his plans to require legislative oversight of emergency powers in his state: “I don’t think anyone agrees that a proclamation should continue forever,” said House Speaker Scott Saiki. “I’ll be working on a bill that will allow the Legislature to basically disapprove the governor’s emergency proclamation whether it’s the entire proclamation or just a portion of the proclamation.”

Whether there should be emergency powers reform isn’t a partisan debate, it’s a fundamental institutional question on the role of the legislature and representative government.

As for Washington state, I encouraged the committee to reform the state’s emergency powers in a way that is very similar to what was proposed by the bipartisan SB 5039. My proposed amendment to RCW 43.06.220 (4) would require legislative approval of all emergency orders after 30 days unless an emergency order is narrowly written solely to qualify for federal funds. Those types of administrative orders that don’t impose any mandates or restrictions on citizens would be exempt from the requirement to receive a legislative extension.

This type of reform would ensure that every emergency order by the governor is subject to at least some type of legislative oversight while maintaining the flexibility to issue very narrow orders to receive federal relief funds.

Long lasting emergency orders should receive the input of 147 legislators from across Washington state following a public process, allowing the perfection of policies through a collaborative weighing of all the options, alternatives and trade-offs. 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.

Whether 14, 30, 45 or 60 days, 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 is not meant to be the arbitrary rule of one behind closed doors. It is time to end governance by news conference and return to the normal public legislative process. Even during a prolonged emergency, the checks and balances of our representative government must be safeguarded and embraced.