Who, How Much and How Long?

Published January 28, 2021

By Tom Campbell

Nobody runs for Governor hoping he or she will be confronted with a major disaster while in office. At least we hope not. But it’s part of the job. As the coronavirus pandemic rages into a second year, legitimate questions are being raised about who should make decisions in times of emergency, what authorities should be granted, for how long a period should these powers last and what should be done if the authorized time expires before the emergency ends?
The National Conference of State Legislatures reports our state isn’t alone in asking. Unfortunately, the current health issue has become partisan and political. Don’t believe it? Just look at how the pandemic has been managed in so-called “red” states versus “blue” states. There is growing opposition between legislatures and governors and, in most cases, those states have governors of one party and a legislature controlled by the other.
Healthcare shouldn’t be political. The goal should be to ensure the right people have the right authority for the right period of time in order to help the most people.
Most constitutions give power to enact laws to the state legislature, while the chief executive officer (the governor) has the authority to administer those laws through various agencies. The deliberative nature of our 170 legislators ensures they can’t and won’t act quickly in emergencies. Our Council of State, consisting of statewide elected officials with narrow scopes of expertise, is neither qualified nor able to make informed emergency decisions quickly. Further, neither group has a record of non-partisan decision-making. Some governors don’t either, but as the state’s highest ranking elected officer the governor usually has more statewide perspective.
It is an awesome responsibility to task one person with managing a crisis and I suspect most governors, including Roy Cooper, would welcome help during crises, but with three major caveats. First, the helper(s) needs expertise dealing with the emergency at hand.  Hurricanes, floods, snowstorms, rockslides, terrorist acts and health emergencies require different skillsets. Secondly, advisors must not become a burdensome hindrance and must act in a timely manner. It is bad enough to work through the federal bureaucracies, like FEMA, without having hands unnecessarily tied further. But the top prerequisite is advisors must put aside their personal, professional, economic or political interests to provide advice most beneficial to the most people.
The legislature could provide more clear guidelines for emergency powers, abiding by the above standards. The governor needs broad authority because emergencies are different and conditions change rapidly.
It might sound tidy to draw a line saying emergency powers are only in force for 60, 90 or a certain number of days, but emergencies don’t follow deadlines. We are now twelve months into this pandemic and it remains an emergency. It would be reasonable to set a six-month time limit for emergency power, with the governor coming back to the legislature to ask for renewals. But again, only if legislation stipulates that considerations will not be partisan or political. Fair is fair.
All this ultimately comes down to the old question of responsibility and authority. Whoever has the authority to make emergency decisions must be held responsible and for outcomes. However, a second axiom trumps the first: where everybody is in charge, nobody is in charge. That means if 170 legislators are making those decisions no one person can be held responsible – for good or bad. In emergencies that’s not o.k. Currently the governor is responsible. Our voters must believe Governor Cooper has done a good job of managing COVID-19, judging by November’s election results. He was one of few statewide Democrats to win in a year of sweeping Republican victories.
The bottom line is we would be willing to see changes made to emergency powers if we could be confident they weren’t partisan and political. We don’t have that confidence.