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The governor's foot-dragging on COVID relaxation may cost him executive power

One year and one day ago, Gov. Roy Cooper packed North Carolina in mothballs, trying to avoid a massive outbreak of COVID-19 that could overwhelm hospitals and send the state’s human services system into meltdown.

We’ve been emerging slowly. To the degree that North Carolina avoided hospital overload and health care gridlock, the clampdown worked. (If you’re a business owner who’s lost everything or a parent who become an involuntary homeschooler, your mileage may vary). North Carolina also has one of the highest vaccination rates of any large U.S. state. Despite this success, the governor still refuses to say when we might return to something that approaches normal.

He’s had his chances. At a news conference Wednesday, St. Patrick’s Day, the anniversary of the big lockdown, the governor offered some hope that vaccinations, the tireless efforts of health care providers, and prudence by educators, business owners, and Tar Heels generally are moving us closer to the goal.

The goal of what? Again, no sign from the governor. As a technocrat who’s failed to articulate any vision of a COVID endgame, Cooper has remained largely inaccessible to the press or the public, conducting virtual news briefings from a bunker at the Emergency Operations Center, with a staffer screening calls, allowing no more than superficial interaction with the media.

He’s done this because, by nature, he’s risk-averse. He’s not a big-picture thinker. But he also does it because he can. A new report from the Maine Policy Institute suggests that Roy Cooper (or any North Carolina governor) may have more discretionary power than the chief executive of any U.S. state.

This power, and Cooper’s unwillingness to surrender it, is why a bill limiting the governor’s unilateral authority finally is moving through the General Assembly.

From the first days of the pandemic, Cooper has boldly enacted moves to restrict social and commercial activities. On Saturday, March 14, he announced an end to in-person classroom instruction … effective two days later. He closed restaurants and bars to in-house dining at 5 p.m. on St. Patrick’s Day, 2020. Establishment owners and managers had less than seven hours’ notice that one of their busiest days of the year largely would be dark. He gave 10.6 million residents three days to upend their lives and shelter at home.

Relaxing these restrictions has been another story entirely. Here, his caution over, if not fear of, making mistakes came to the fore. It’s who he is.

Initially, Cooper announced a three-phase reopening plan. I reported about it at the time. The first phase started May 8. It ended the shelter-in-place order and was supposed to last two or three weeks. The second, with few restrictions, four to six weeks. The third, perhaps through the summer.

We’re still in Phase 3. We don’t know when that will end, although the most recent emergency order expires Friday, March 26.

“I’m not going to tell you”

At Wednesday’s news conference, Dawn Vaughan, a reporter for the News & Observer, asked the governor about questions she’s getting from local faith leaders about religious services.

Passover is April 27. Palm Sunday is the 28th. Could they get some idea about limits on worship sooner rather than later?

“People are asking ahead of time — the week and a half [before] Passover and Palm Sunday. Clergy are asking what to do if people are vaccinated. What can you tell them today instead of right as the orders end?” she asked.

Nada, he said, in his elliptical way.

“We are hopeful that we can ease restrictions even further. In the next executive order, we're going to continue to look at the data the rest of this week and through the weekend and the first of next week, then analyze all of that data and make decisions on what that needs to be in consultation with our health experts and in our continued conversations with businesses throughout North Carolina who have contributed greatly to the kinds of protocols that we put in place so we're very hopeful, and also as more people get vaccinated that that does figure into what we're doing.”

Again, he does this because he’s hyper-cautious and because he can.

The study on governors’ powers from the Maine Policy Institute looked at emergency management laws across the country, based on the online legal database Justia and state websites. From that, policy analysts developed a scale of 0 to 100, with higher numbers representing more legislative or outside oversight of governors’ emergency powers. Factors include governors’ unilateral powers; the time limits set on emergency orders, if any; and the role legislators or other officials outside the governor’s office play in limiting solitary executive power.

Bottom-feeding

Overall, North Carolina’s score was 41, tied with four others in 46th place. Only Vermont, Arizona, North Dakota, and Nebraska afford less oversight or outside supervision of their governors’ emergency powers. (Vermont, the worst, lets some parts of emergency orders remain for six months after the orders expire!)

As I’ve reported before, either the N.C. governor (or the legislature) can unilaterally declare a state of emergency, with no time limits. Only the entity declaring the emergency can rescind it.

In another way, though, the Maine Policy Institute said North Carolina’s governor has more power than any of his colleagues. Not only can he declare a state of emergency and keep it in place for as long as he likes, he also can unilaterally create new regulations and overrule existing statutes. No other governor can do that.

Share Deregulator

While Cooper faces several lawsuits from affected businesses challenging these powers, and one attacking the heart of the Emergency Management Act itself, the General Assembly finally has reforms on the move. 

House Bill 264 would require any governor declaring a statewide state of emergency to notify the Council of State — the 10 statewide elected executive branch officials — within 48 hours and win their agreement within seven days. If the COS backs the initial order, the governor would have to return for concurrence 30 days later or the order would expire. To be sure, the governor would keep the power to rescind an authorized emergency order on his own.

More than 50 House Republicans, nearly half of the 120-member body, have sponsored the bill. It’s in the Rules Committee, where it could be moved for a floor vote at any time. The GOP-led Senate would surely go along if the House passed the bill.

Cooper then would veto it. As my former John Locke Foundation colleague Mitch Kokai noted earlier this week, legislative Democrats blocked two earlier attempts to limit the governor’s emergency management powers. H.B. 264 would give Democratic legislators an opportunity to do their jobs rather than protect a governor who’s overstepping his bounds.

A General Assembly that asserts its constitutional role would not only be healthy for the state. It also would let North Carolinians start to create a post-COVID life. Because we aren’t getting any suggestions from the Executive Mansion.

People didn’t have blackberries …

Mike Marshall is a great player (I saw him with David Grisman and Stephane Grappelli nearly — yikes— 42 years ago) and he really loves this amazing mandocello.