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The state of emergency, emergency

Updated: Jul 21, 2023

While most states have ended their states of emergency, Washington State remains under emergency proclamation.

Governor Jay Inslee issued a COVID emergency declaration in 2020 and hasn't given it up since. That means that he can act without legislative approval on a host of items that he deems are impacted by COVID.


Each state has its own rules regarding emergency powers, as the National Conference of State Legislatures reports:


Washington


No order or orders concerning waiver or suspension of statutory obligations or limitations (during a declared emergency) may continue for longer than 30 days unless extended by the legislature through concurrent resolution. If the legislature is not in session, the waiver or suspension of statutory obligations or limitations may be extended in writing by the leadership of the senate and the house of representatives until the legislature can extend the waiver or suspension by concurrent resolution. For purposes of this section, “leadership of the senate and the house of representatives” means the majority and minority leaders of the senate and the speaker and the minority leader of the house of representatives. Wash. Rev. Code § 43.06.220

Idaho

The legislature by concurrent resolution may terminate a state of disaster emergency at any time. During any state of disaster emergency, the governor may not alter, adjust, or create any provision of the Idaho Code. Idaho Code § 46-1008(2).

Montana


A state of disaster may be declared by the governor when the governor determines that a disaster, as defined in 10-3-103, has occurred. The governor may not declare another state of emergency or disaster based on the same or substantially similar facts and circumstances without legislative approval. A state of emergency or disaster may not continue for longer than 45 days unless continuing conditions of the state of emergency or disaster exist, which must be determined through a poll of the legislature as provided in 10-3-122 or by the declaration of the legislature by joint resolution of continuing conditions of the state of emergency or disaster. A state of emergency or disaster may continue for a drought, an earthquake, flooding, or a wildfire as long as continuing conditions of the state of emergency or disaster exist unless terminated by the declaration of the legislature by joint resolution of termination of the state of emergency or disaster. The governor shall terminate a state of emergency or disaster when: ….at any time the legislature terminates the state of emergency or disaster by joint resolution. However, after termination of the state of emergency or disaster, disaster and emergency services required as a result of the emergency or disaster may continue. The legislature may, by joint resolution in a regular or special session: terminate a state of emergency or disaster, extend a state of disaster; provide conditions or limits on the governor's actions taken pursuant to 10-3-104; and approve or disapprove the continuation of any executive order, proclamation, or regulation that was enacted based on a state of emergency or disaster. Mont. Code Ann. § 10-3-303 A proclamation [of emergency] is ineffectual unless the legislature is then in session or the governor simultaneously issues an order convening the legislature in special session within 45 days. Mont. Code Ann. § 10-3-505.
If a majority of the legislators fail to approve the call for a special session within 30 days after the secretary of state mails the ballots or notifies each legislator, all ballots are void and may not be used again. When the purpose of the special session is to consider an existing state of emergency or disaster declared under the authority of 10-3-303, if a majority of the legislators fail to approve the call for a special session within 7 calendar days after the secretary of state sends the ballots or notifies each legislator pursuant to 5-3-106(2), all ballots are void and may not be used again. If a poll is not approved, the entire process must be repeated to call the legislature into special session. Mont Code Ann. § 5-3-108

It is important for the executive to have the tools he or she needs to respond to an actual emergency. But emergencies don't last two years. Washington legislators had the chance to act to limit the governor's emergency powers and bring the people back into the process, but they failed.



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