By Beshoy Shokralla
The most common response to the pandemic has been quick and decisive action from state governors to reduce the spread of COVID-19 through executive orders and state programs. At first, the orders were accepted and seen as necessary responses to the public health emergency. As time went on, however, and these orders continued to be renewed, state governors faced criticism from citizens, businesses, and even legislators for what many believed to be an improper exercise of power. Social media sites were littered with misinformation about how these executive orders were not laws, but mere suggestions that were unenforceable. Members of state legislators, believing these orders to be an exercise of legislative powers traditionally belonging to the legislative branch, began to rally against stay-at-home orders and call for them to be revoked. These debates were especially contentious in states where the governor was of a political party different from the majority of the state legislature. The pandemic has brought several important questions into the public dialogue and into courts, among them being: 1) does the government have the authority to restrict personal liberties during a public health crisis; 2) does the executive branch have the authority to respond to these crises; and 3) to what extent can state governors enact these responses?
First, it is nearly undisputed that states have the authority to restrict liberties in response to a public health crisis. In Jacobson v. Massachusetts, 197 U.S. 11 (1905), the Supreme Court held that states may enact reasonable regulations to protect the public health and safety under their broad police powers under the Tenth Amendment to the United States Constitution. Despite the broad nature of states’ police powers, the Court stressed that this power is not unlimited and that plaintiffs can challenge the laws as applied to them if they could show that they would be harmed by the requirement. Assessing restrictions under Jacobson, courts typically look at “whether the interests of the public require government interference … and … whether the means used are reasonably necessary to accomplish that purpose and not unduly oppressive upon individuals.” See Benner v. Wolf, 461 F. Supp. 3d 154, 164 (M.D. Pa. 2020).
EXECUTIVE EMERGENCY MANAGEMENT
Second, in implementing their police powers, state legislatures can utilize different legislative schemes. For example, the restriction at issue in Jacobson involved a compulsory vaccination ordinance. During the pandemic, governors have relied on emergency management acts passed by their state legislatures. These acts give governors the power to declare states of emergencies and enact other orders to deal with the declared emergency. These acts typically provide that the legislature may override a declaration of a state of emergency by concurrent resolution either at any time or in response to an attempt to extend the state of emergency beyond its statutory limitation. These or similar acts have been around prior to COVID-19 and work by delegating to the executive branch some authority to carry out the policy set forth by the legislature to deal with emergencies. A major criticism of how governors have used these acts in the wake of the COVID-19 pandemic is that they implicate separation-of-powers concerns by allowing the executive branch to exercise pure legislative policymaking power in contravention of states’ nondelegation clause. The nondelegation doctrine, often either written in or implied from state constitutions or administrative procedure acts, state that the legislative branch cannot delegate its lawmaking power to any other branch or entity. The criticism is that most emergency management statutes do not seem to contemplate the type of response used in managing the COVID-19 pandemic, and that legislators could not have intended for the executive branch to respond in such unprecedented ways. However, state courts have, for the most part, found that these statutes do not violate the nondelegation doctrine and are proper exercises of state police powers.
EXTENT OF EXECUTIVE AUTHORITY
In looking at the extent of extent of executive authority allowed under these statutes, it is important to note that the answer will differ from state to state. For the purposes of this blog, we will look at four important cases — three of which decided by state supreme court — challenging the constitutionality of their respective states’ emergency management acts.
Striking Down Emergency Acts
The first case dealing with stay-at-home orders and separation of powers issues was Wisconsin Legislature v. Palm, decided back in May. 2020 WI 42 (2020). In that case, the Wisconsin Legislature challenged the authority of the state’s Department of Health Services (DHS) to issue emergency orders pursuant to its perceived power to do so under a state statute. This is already unique among the cases as the emergency order was not issued under the authority of the governor’s state of emergency, and the plaintiff did not challenge the governor’s authority under the emergency management act to proclaim a state of emergency. Instead, the case centered around whether: 1) the emergency order was considered a rule and therefore needed to be promulgated properly under the state’s Administrative Procedure Act; and 2) whether the order exceeded the DHS’s authority under the relevant statute. In a contentious 4-3 decision, the court found that the emergency was a rule, and therefore needed to go through the rulemaking process in order to take effect. It also found that even assuming the order wasn’t a rule, it would have to go through the rulemaking process in order to have enforceable criminal penalties. The four justices in the majority expressed their positions forcefully, quoting the Trump Administration’s letter of interest in a separate case that “[t]here is no pandemic exception … to the fundamental liberties the Constitution safeguards.” Wisconsin Legislature v. Palm, 2020 WI 42, 53 (2020).
This case was one of the first rebukes of state executive efforts to respond to the pandemic. In one concurrence, a justice wrote that whether the order was a brilliant response to COVID-19 or not, neither brilliance nor necessity could confer the authority the order required to withstand scrutiny. It was also one of the first instances of a majority Republican legislature filing a lawsuit to strike down a stay-at-home order issued by the administration of a Democratic governor. Other lawsuits soon joined, with similar divides along the political lines.
The next invalidation of a stay-at-home order on the basis of separation of powers occurred in In re Certified Questions From the United States District Court, Western District of Michigan. This case was decided in between appeals for House of Representatives v. Governor, a lawsuit between the Republican-majority Michigan Legislature and the state’s Democratic governor; it decided the challenges brought forth by the legislature in response to questions certified to the supreme court in a separate federal case against the state. In Michigan, the governor had declared a state of emergency under one state emergency management act (EMA). On the eve of that state of emergency’s deadline, the governor re-declared a state of emergency under the same statute instead of asking the state legislature to extend the old one. The governor also declared a state of emergency under a separate emergency manage act known as “The Emergency Powers of the Governor Act” (EGPA). The EGPA state of emergency did not have a statutory time limit, but instead ran indefinitely until the governor declared the emergency over.
Focusing first on the issue of re-issuing orders, the court found that the governor could not simply re-issue their state of emergency order to circumvent the legislative approval required from the legislature. Accordingly, it struck down the emergency order renewed under the EMA. Turning next to the broad and indefinite nature of the EGPA, the court found that the statute was an unconstitutional delegation of the legislature’s legislative powers to the executive. In concluding so, the court contrasted the time-limit on state of emergencies under EMA, and the requirement for legislative approval in order for them to continue. The court also focused on the lack of guidance provided by the EGPA, which only limited the governor to promulgating “reasonable” orders that were “necessary to protect life.” Such standards were too weak to allow for the constitutional delegation of the powers conferred in the EGPA. Finding that the unconstitutional delegation was also not severable, the supreme court struck the EGPA down as well as the emergency order promulgated under it.
Both Wisconsin Legislature and House of Representatives show the limits of an executive response to public health emergencies. Stay-at-home orders issued pursuant to a state emergency management act with proper limitations seem acceptable under the nondelegation doctrine. Orders issued by administrative can be on shakier grounds, especially if they attempt to bypass the rulemaking process. Acceptable limitations can be time-limits that require legislative approval to extend, such as the time limits imposed by the Wisconsin emergency management statute or Michigan’s EMA. A state of emergency that can be terminated anytime by concurrent resolution of the legislature may also pass muster, as is the case in California, New York, Pennsylvania. As long as the legislature is given an opportunity to override the state of emergency, it appears, so far, that the emergency management act and the accompanying executive orders will be upheld. Time will tell if courts will begin to strike down emergency orders for being improper exercises of the state’s police powers. See County of Butler v. Wolf, No. 2:20-CV-677, 2020 WL 5510690, at *16 (W.D. Pa. Sept. 14, 2020) (finding that Pennsylvania’s stay-at-home orders were unconstitutional). But see Robinson v. Murphy, No. CV 20-5420, 2020 WL 5884801, at *9 (D.N.J. Oct. 2, 2020) (rejecting the rationale used in County of Butler).
Upholding Emergency Acts
While cases thus far, at least between legislatures and governors of the same state, seem political in nature, it’s important to note that courts do not make it easy to play politics. For instance, in Free Minn. Small Bus. Coalition v. Walz, 2020 Minn. Dist. LEXIS 256, *16-17 (Minn. Dist. Ct. September 1, 2020), the court rejected the challenges of individual legislature members for lack of standing. While the court allowed challenges from business affected by the emergency orders — and ultimately concluded that the orders did not violate the nondelegation clause — it held that claims that an order exceeded the executive’s authority to the detriment of the legislature harms the legislature as a whole, not individual members. Id. at *15. The entire Minnesota legislature would need to sue, similar to the case in Michigan and Wisconsin, as opposed to only a few individual legislators bringing the suit. It also rejected the individual members’ claim that they had taxpayer standing, finding that nondelegation challenges could not sustain taxpayer standing. Id. This is particularly important as it requires that the majority of both houses come together in order to have standing to sue the governor over nondelegation clause claims.
Furthermore, although the legislature may be able to pass a concurrent resolution to terminate a state of emergency, it may need bipartisan support in order to override the governor’s veto power. This exact scenario was at the center of Wolf v. Scarnati, 233 A.3d 679 (Pa. 2020), where the Pennsylvania Supreme Court held that the legislature could not terminate the governor’s state of emergency without presenting the concurrent resolution for the governor to veto, as required by the state’s constitution. See Pa. Const. Art. III, § 9.
In conclusion, executive authority to issue emergency orders to address public health crises is well supported by precedent and state constitutions. The extent to which the executive branch can continue these orders is yet to be seen, but early cases show that as long as the orders are issued under a state emergency management act that gives the legislature an adequate check on executive power, the orders can continue. Such a system requires some coordination between the executive and legislative branches to continue, but even in cases where the two branches are adverse to one another sufficient checks can exist to ensure that termination of a state of emergency is not a purely partisan decision.
This post was originally published in the COVID-19 and the Law blog.
Beshoy Shokralla graduated from Harvard Law School in May 2022.