Here’s the live cast video I did yesterday on the ongoing fight against the West Virginia Governor’s COVID related executive orders, such as the so-called “mask mandate” and other restrictions:
There was a great article in The Federalist yesterday by Molly McCann, titled, “Governors Can’t Use Coronavirus To Indefinitely Declare A State Of Emergency. This is exactly what I’ve been saying:
Supreme Court Justice Antonin Scalia often noted that the primary safeguard of our constitutional liberties is the structure of our government. Every banana republic has a bill of rights, he once said, but the strength of the American system is the separation of powers.
At the federal level, there are three separate, co-equal branches of government that must operate together for our representative republic to function properly, and this balance of power is mirrored at the state level. Unhappily, our system today is not functioning as designed.
There’s technically nothing currently protecting us from experiencing what’s happening in Australia right now. A governor – especially in WV – could just order us to stay in our homes indefinitely, and nothing currently in place would be able to stop them. The longer we allow unchecked executive control to continue, the greater the damage to our system of government. We in WV have even less protections than other states when it comes to a governor instituting an indefinite state of emergency power grab. At the very least, we’ll still have the ballot box (if the governors don’t restrict us to mail-in voting, of course):
Most state statutes automatically terminate emergency authority after a 30- or 60-day period, unless specifically extended by the governor. This highlights that emergencies are assumed to be of short duration. Our current quandary is that governors are using COVID as an excuse to extend their authority indefinitely.
If the governors are empowered to declare and continue a state of emergency, what is the remedy? The Founders believed the first and most powerful check on the executive would be the ballot box. In modern practice, one of the best checks on the individual policies an executive contemplates has been the resistance of the electorate in real-time. The coronavirus crisis has once again proved that state and local races matter deeply.
Unfortunately, West Virginia’s emergency statute does not have an automatic shut-off valve. It continues until the Governor steps down from the throne, or until a majority of the legislature votes to stop it. Then we have the issue of the legislature not being in session to do so until February of 2021….
As Ms. McCann opines, when the legislature does get a chance to do its thing, rather than just squabble over federal COVID money, they need to take immediate action to stop future gubernatorial tyrants, who very well may be worse than the one we have right now:
To declare emergencies, to close businesses and confine Americans to their homes, to mandate masks, to limit access to churches, to suspend your civil liberties, the governors point to power enumerated by statute—that is, defined by the legislature. Where the legislature defined the terms, it can redefine the terms. Where they are empowered to do so, state legislatures must begin to declare the emergency at an end, rebuke the governors’ power grabs, and recalibrate the allocation of power to its proper balance among the branches.
Unfortunately, rather than reclaiming authority from governors, many state legislatures right now are fighting over which branch gets to decide how to spend the federal dollars states are receiving in emergency aid. It is not clear that the balance of power will naturally revert to normal any time soon.
(emphasis added)
Under West Virginia law, the legislature may not delegate its core legislative responsibility to a governor. They’ve tried before, and were smacked down by the State Supreme Court. But to the extent that it has done so already, or to the extent that the Governor thinks they did so, it needs to be nipped in the bud as soon as possible. The legislature should completely re-write the emergency powers statute to protect the people. And to protect themselves, frankly.