Opinion: Carolina Journal Opinions

Reining in governors on emergency powers is a no brainer

Gov. Roy Cooper, at an August 2020 emergency management briefing. (Pool photo)
Gov. Roy Cooper, at an August 2020 emergency management briefing. (Pool photo)

As long as Gov. Roy Cooper doesn’t take it as a personal indictment of his leadership, there is no reason not to reform the emergency powers of the governor in North Carolina. House Bill 264, Emergency Powers Accountability Act, shouldn’t be construed as partisan. The proposed law, something many state legislatures are now reforming in the wake of the Covid-19 pandemic, simply requires the governor to seek approval from the Council of State for extended orders. Under this bill that would mean receiving approval from the other statewide elected Council of State within seven days after declaring an emergency and every 30 days after that. History, as the American Founders warned us, teaches us that singly concentrated power into one individual is dangerous even with the best of intentions.

“Simply put, no one person should have the unilateral authority to shut down schools, businesses, and entire livelihoods, especially for over a year,” said Rep. John Bell, R-Wayne, during a March 10 press conference introducing the bill. “This is not a Democrat or Republican issue this is about clarifying the law to reflect today’s challenges and more bipartisan consensus.”

Those that incessantly cheerlead for Gov. Cooper should be open to reforms given that he is leaving the governor’s mansion in early 2025. They may find successive governors, particularly of an alternative political party less palatable. One of the strongest arguments for reigning in the emergency powers of a governor is to help depoliticize the orders from the state government. Many North Carolinians are aware that at least some residents pushed back on Cooper’s orders —particularly in relation to mask mandates — because they do not like the governor’s politics. At the same time, there is little doubt that at least some orders from Cooper became politicized during the COVID-19 pandemic, especially in regard to public school reopening considering the NCAE’s strong influence over him. Building and sustaining public trust is critical in any emergency situation that might require a prolonged and collective sacrifice.

While the bill accomplishes the goal of diminishing the power of one man or woman in an emergency, it may be lacking in its attempt to restore the balance of power between the branches of government. John Guze, senior fellow for legal studies at the John Locke Foundation, praised the bill for ending any ambiguity on requiring consent with the Council of State but expressed concerns with the legislation restoring the balance of power between two branches of government:

“In its current form the Act fails to provide enough legislative oversight to satisfy the separation of powers required by the NC Constitution and avoid running afoul of the nondelegation doctrine established by NC courts.” Guze points out too that many other states “require legislative approval to extend emergency declarations beyond a reasonable period of time” and still, other states are currently looking at adding that provision.

New York is one of those states seeking to curtail the emergency powers of the governor and has strong bipartisan buy-in. “Today, I voted in the affirmative to rescind the Governor’s expanded emergency powers,” declared Democrat assembly member Marcela Mitaynes. “It is time to reestablish a clear balance of power between our respective branches and provide more accountability in how we address this ongoing public health crisis going forward.”

It’s a significant character flaw if any governors deem themselves as unaccountable or above correction during many of the abuses of power that was witnessed with Covid-19 restrictions. “An honest man can feel no pleasure in the exercise of power over his fellow citizens,” reminds Thomas Jefferson. Strong leaders embrace accountability. The bill introduced by some of the Republicans in the General Assembly is a good start for diluting the corrupting tendencies of power and should have broad bipartisan support.

Ray Nothstine is Carolina Journal opinion editor.