A weak governor? Not so fast ...

N.C.'s Emergency Management Act throws out the old playbook

One purported hallmark of North Carolina governance may be a myth after all. The notion that the Tar Heel State institutionally has a weak governor.

On the surface, that seems right. Article III of the state Constitution says the governor must live in Raleigh, give the General Assembly information about “the affairs of the state,” and submit a budget. The governor also has to execute the laws the legislature passes and can call special sessions.

But that’s about it. The governor can serve only two terms, it takes a mere ⅗ majority of both legislative chambers to override a veto, and he has no say in redistricting and local bills (laws affecting small portions of the state).

Any other authority can be given or taken away by the legislative branch. Which, as we’ve learned over the past year, can pose a problem if a governor decides to turn up his power to 11. Which Roy Cooper has done using the Emergency Management Act. 

His powers under that act place North Carolina as one of only 15 states allowing governors to impose unilateral lockdowns indefinitely. That’s among the findings in “Legislative Oversight of Emergency Executive Powers,” a report released this week by the National Conference of State Legislatures.

NCSL’s research found 35 states give the legislature a role in deciding how long a governor can keep an emergency order in place. Eight of them set deadlines (ranging from a few days to several months), before which the governor can’t extend the order without legislative approval or some other buy-in from state officials. In 27 states, the legislature can repeal an emergency order at any time.

“Although governors need to be able to respond to emergencies quickly, legislatures have an important role in making sure these powers are not abused and that they do not undermine the separation of powers vital to our democratic system of government,” the report says.

Not so much in the Tar Heel State.

During Cooper’s Wednesday news conference, the governor announced he was extending his COVID-19 clampdown by another month, and maintaining a ban on evictions until the end of March. 

  • Cooper didn’t say, but it’s possible most K-12 public schools will remain closed for in-person instruction through the end of the academic year, despite growing evidence of massive learning loss and mental health meltdowns. All the while the risks to staff and kids (in the lower grades) are negligible if schools impose safety precautions.

  • Most indoor gatherings are still outlawed.

  • Restaurants must abide by tight indoor occupancy limits.

  • Private bars that lack kitchens or outdoor seating … too bad.

As Cooper and state health Secretary Dr. Mandy Cohen said Wednesday, the pandemic remains lethal. We’re seeing signs of hospitalizations falling and infection rates dropping. Even so, COVID won’t get under control until millions more North Carolinians get vaccines and better therapeutics to treat the sick come to market. 

But there’s also fatigue from the lockdowns, they acknowledged. The interest in maintaining isolation is waning, fast. The governor’s approach of treating every corner of North Carolina the same will heighten the fatigue, and the anger.

We’re not alone. The NCSL report says in 2020 more than 30 states considered measures to limit a governor’s unilateral power. In 10, they were adopted. (Two proposals to do so here failed when Cooper said he would veto them and legislative Republicans couldn’t get Democrats to take on the governor.)

Legislatures in at least 26 states already have proposals in the hopper this year to restore some accountability to emergency management. We’ll see some legislative action here, no doubt.

We’ve got lawsuits, too. Two filed in state courts by bar owners in more than a half-dozen counties argue Cooper has assumed legislative powers and is denying them the state constitutional right to earn a living. Pacific Legal Foundation attorney Jessica Thompson, who’s representing the owners of Club 519 in Greenville, explained their lawsuit below.

Some federal judges have seen enough. In late November, the U.S. Supreme Court struck down New York Gov. Andrew Cuomo’s pandemic orders which treated religious services more rudely than they did secular institutions, so long as all of them imposed health restrictions. Journalist and constitutional litigator David French suggests pandemic law’s days are numbered.

The drafters of the 1971 N.C. Constitution and the state’s Emergency Management Act never envisioned giving any governor the authority to rule indefinitely by fiat with no outside oversight or control. That’s where we are.

Of course the General Assembly should grant a governor plenty of leeway to act boldly for short periods, when lawmakers may be out of session or otherwise too slow to move.

But we’re approaching the first anniversary of the initial shelter-at-home order. All the relief we’ve gotten has come from one person. That’s not how representative, constitutional government works.

We need legal guardrails to accommodate the next pandemic, or the next long-standing statewide emergency. ‘Cause it’s coming.

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