Executive power is important, but so is legislative oversight
One of the most disappointing parts of the government's response to the COVID-19 pandemic was the prolonged use of emergency powers by executives across the nation. There is no doubt there was an overreach at both the federal and state levels. In fact, federal emergency powers are still in place, leading The Washington Post to proclaim that presidents gain too much power when emergencies hit.
In a real emergency, the executive - both presidents and governors - need broad powers to act fast. Legislative bodies take time to assemble, so they can temporarily transfer their powers to the executive in an emergency.
But when problems do last for extended periods, it is the responsibility of the legislatures to debate risks, benefits and trade-offs of various long-term approaches. Lawmakers may end up passing the very policies a governor would prefer, but they do it after deliberation as representatives of the people and do it in a public process.
Lawmakers across the region are now introducing legislation to ensure that they have a role in future emergency power proclamations.
In Idaho, new Senate Bill 1104 would limit the governor to one 30 day extension of a previous 30 day emergency order. That means after 60 days, the legislature would need to be called back into session and concur that the emergency extension should be approved.
This is not unusual. In Wisconsin, for example, a state of emergency cannot exceed 60 days unless it is extended by the Legislature, and in Minnesota, a governor must call a special session if a “peace time” emergency lasts longer than 30 days.
The Idaho Legislature has had previous fights with Governor Brad Little over emergency powers.
The National Conference of State Legislatures has a great tool to compare and contrast emergency powers in the states.
If Idaho lawmakers decide to move forward with SB 1104, they will want to make some changes. Section 2 of the bill references the governor can petition the legislature with "reasonable justification," but does not define what that may be.
One lawmaker's idea of reasonable justification may not be another lawmaker's.
In the end, it is the Legislature - not the Executive branch - that should make the laws we live under, and the governor – no matter the state or the person – is supposed to implement only laws passed by the Legislature.
Reforming emergency powers was one of the 10 policy recommendations Mountain States Policy Center made before the legislative sessions began.