Should Governor’s emergency powers be subject to legislative check?

By JASON MERCIER  | 
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Apr 3, 2020

Yesterday Governor Inslee extended his “Stay home, stay healthy” emergency proclamation and all his previous coronavirus emergency orders until at least May 4. I initially believed that under state law, the 4 corners of the legislature (House and Senate majority and minority leaders) were required to give consent to any extension of an emergency proclamation lasting longer than 30 days. That legislative check, however, is limited to only certain types of actions taken by the Governor.

Without passing any judgement on the decision by the Governor to extend the current emergency restrictions, should just one person have that much unchecked power to indefinitely impose emergency restrictions? In contrast, other states give the legislative branch more oversight over emergency actions taken by the executive branch.

For example:

  • Colorado: “The general assembly, by joint resolution, may terminate a state of disaster emergency at any time.”
     
  • Florida: “The Legislature by concurrent resolution may terminate a state of emergency at any time."
     
  • Maine: “In the event that an order or rule issued by the Governor, pursuant to the powers granted in paragraph B, are to be in effect for longer than 90 days, the Governor shall, before the 80th day following the issuance of the order or rule, convene the Legislature."
     
  • Texas: “The legislature by law may terminate a state of disaster at any time."
     
  • Wisconsin: “A state of emergency shall not exceed 60 days, unless the state of emergency is extended by joint resolution of the legislature.”

There will be many lessons learned going forward from this unparalleled situation. One thing the legislature should consider is if there should be an additional check required on the Governor extending emergency proclamations beyond the initial 30 days. One possibility is to extend the requirements found in RCW 43.06.220 (4) to all emergency proclamations issued by the Governor.