North Carolina’s governor would face a new 10-day limit on unchecked use of emergency powers, under a bill approved Tuesday on a party-line vote in the state Senate.
Senate Bill 346 spells out that executive orders lasting longer than 10 days would require approval from the 10-member Council of State. After 45 days, those orders would require support from the General Assembly.
Senators approved the measure, 28-21. Republicans supported the idea, and Democrats opposed it. The measure fell two votes short of the three-fifths standard the Senate would need to withstand a veto from Democratic Gov. Roy Cooper.
New restrictions on the governor’s authority would take effect Sept. 1. Senators amended the original bill, which would have restricted the governor’s emergency powers immediately.
“The intent of this change is to get us through the current situation,” said Sen. Bill Rabon, R-Brunswick, a primary sponsor. “Should the need arise, the governor would be free to issue any new executive order that he deems necessary. They would simply be subject to the process of this bill.”
Lawmakers have been debating the merits of the governor’s emergency powers for more than a year. Cooper has used the state Emergency Management Act since March 2020 to issue executive orders linked to the COVID-19 pandemic. Those orders included shutdowns of schools and businesses, limits on the sizes of indoor and outdoor social gatherings, and mandates tied to wearing masks.
In most cases, he has acted alone. S.B. 346 would require more elected officials to sign off on his emergency measures.
“This would require the legislative [and executive] branches to work together and develop a collaborative solution,” Rabon said.
Sen. Jim Burgin, R-Harnett, another sponsor, emphasized the Council of State’s role. That group of 10 statewide elected executive branch officials includes the lieutenant governor, attorney general, auditor, and superintendent of public instruction. Republicans now hold six of the 10 council posts.
“Nothing passes through this body that doesn’t have a lot of people’s hands on it,” Burgin said. “Wise and great legislation comes from multiple hands touching things.”
“We ought to approach this as: Who needs to be involved in great decisions?” he added. “I want these 10 people involved.”
Only Sen. Natasha Marcus, D-Mecklenburg, spoke against the bill. “Emergencies cannot be managed by committee,” she said. “In a crisis, decisions must be made quickly and decisively.”
Marcus compared S.B. 346 to a pile of banana peels placed in Cooper’s path. “This bill would slow things down,” she said. “It would add administrative red tape, and it would make us inefficient in our response to emergencies. It would introduce a political tug of war about every emergency decision that the governor makes or any future governor makes.”
Sen. Amy Galey, R-Alamance, critiqued Cooper’s unilateral approach to decisions about COVID-19. “This is not how government in the United States is intended to function,” she said. “In the current Emergency Management Act, it’s totally in the governor’s discretion.”
“Once the governor invokes the Emergency Management Act, his authority to govern by fiat lasts until he decides — he decides — not to use any more,” Galey added. “There’s zero separation of powers, and the governor has all the powers for an undetermined period of time.”
S.B. 346 now heads to the state House. Cooper vetoed a similar measure to scale back his emergency powers in 2020. A vote to override that veto fell short in the Senate last July.