This post appears here courtesy of the Carolina Journal
. The author of this post is Donald Bryson
Gov. Roy Cooper at a COVID-19 news briefing | Photo: Press Pool
Looking into January, state legislative sessions will begin across the nation. For many states, a critical focus point will be on the emergency powers those states' governments have exercised in the wake of COVID-19.
North Carolina is no exception. Gov. Roy Cooper's COVID-19 executive orders have been controversial and provocative. These orders have led to a lawsuit
from former Lt. Gov. Dan Forest, multiple protests in downtown Raleigh, and an earnest debate about the limits of the power of the Office of the Governor.
While Cooper enjoyed relatively high job approval ratings as late as November
, this amount of controversy can't continue into perpetuity. The N.C. Constitution tells us that all political power is vested in the people, and the state government is "founded upon their will only." In other words, if substantial portions of the voting public continue to question the governor's authority, perhaps the governor has stepped out of bounds. If this happens, then North Carolina may find itself amid a constitutional crisis.
Lawmakers should reform North Carolina's Emergency Management Act in two critical ways to prevent such a crisis. First, the law needs clarity in the role of the entire Council of State, not just the governor. Second, if the governor has the power to take control of emergencies from local governments, he should be required to consult with those local governments in the first place.
Article III of the state constitution establishes and defines the Council of State. While the governor is the most visible member of the council, as the state's chief executive, it's clear the constitutional framers intended to have a dispersed executive branch. In that line of thinking, they created various executive branch positions that would be elected statewide, including commissioner of Agriculture, treasurer, and attorney general.
Current state law gives the governor broad powers during a statewide declared state of emergency. These powers included setting evacuation routes, establishing economic controls, and waiving any government regulation that "restricts the immediate relief of human suffering." However, the law only allows the governor those powers with the concurrence of the Council of State.
And there is the first great controversy of Cooper's executive orders. Did he seek or receive the concurrence of the Council of State? It would appear he did not. State Treasurer Dale Folwell has indicated
that he has felt left out of the discussions on the governor's statewide executive orders. That was also the crux of Forest's lawsuit; he did not challenge after the suit failed
in Wake County Superior Court.
It's safe to say Cooper has not sought agreement from the COS on his executive orders. While Cooper's staffers continue to insist he's acting in the interest of public safety, we must also acknowledge these are the times that we test the limits of governmental power. And it appears Cooper has acted outside of his legal authority.
An easy and likely agreeable fix along partisan lines would require a record of the COS members' vote. This vote count is not now required in state law, but adding the requirement would be in keeping with other open records laws — especially since executive orders are essentially temporary statewide laws.
Voters elected the entirety of the COS, just like they elected the governor. They are not Cooper's appointees. A reform to require the governor to count votes would prevent a constitutional crisis and instill faith in voters that the governor is not assuming perpetual emergency powers.
But to issue statewide emergency executive orders, Cooper has figured a way around the council. The Emergency Management Act allows the governor to enact local-level controls if "local control of the emergency is insufficient," without the council's concurrence. This "local control" subsection is almost always cited in Cooper's statewide executive orders.
Did you catch that? Cooper is issuing executive orders statewide by taking over emergency powers in all 100 counties. But the problem is obvious. The needs of all 100 counties aren't uniform. Concord is not Corolla. Jacksonville is not Lake Junaluska. The needs of every community are different.
Cooper knows that every county and community is different and has different needs during a pandemic. And this point brings us to the second reform — the Emergency Management Act should require the governor to consult with local authorities if he assumes local control in an emergency. How else is he supposed to know whether local officials can handle an emergency without seeking some level of information?
Unfortunately, it's apparent Cooper hasn't consulted local government and is using the local control provision of his emergency powers to circumvent the Council of State.
Why? Either because he's fiating authority he does not have, or he, a Democrat, wants to avoid the Republican members of the council. Frankly, North Carolina deserves better.
Both reforms suggested would add transparency to statewide emergencies. The year 2020 taught many important lessons, not the least of which is a correlation between the amount of power a government will wield and the distrust residents have.
Our state constitution wasn't framed to give statewide lawmaking abilities to one person, and voters understand that fact. In 2021, lawmakers should take these two steps to cast some sunshine on the state government's emergency powers.