Research & Commentary: West Virginia Considering Amending the Authority of the Governor During a State of Emergency While in Special Session
In this Research & Commentary, Samantha Fillmore examines a House Bill in West Virginia that deals with declared states of emergency.
The West Virginia legislature is currently in special session and considering House Bill 2003, legislation that would amend and reenact the Code of West Virginia relating to the authority and obligations of the Governor and the Legislature when in declared states of emergency.
HB 2003 creates three new definitions to the Code of West Virginia regarding emergency declarations. A “house of worship” means a church, temple, synagogue, mosque, or other building or space set apart primarily for the purpose of worship, devotion, veneration, or religious study. A “state of emergency” means the duly proclaimed existence of, or the imminent existence of, conditions of disaster, or of a serious threat to the safety of persons and property within West Virginia, such as an attack upon the state or the United States, a natural or man-made disaster of major proportions, or a large-scale threat beyond the capacity of local control. A “state of preparedness” means specialized planning and preparation activities intended to minimize any anticipated impact of a pending emergency initiated for the purpose of preserving and securing people or property from harm by utilization of any available governmental resources: provided, that a state of preparedness may not suspend or limit any government function or service to the public, including, but not limited to, closing public schools or governmental offices, nor to regulate or restrict any private state citizen’s conduct, such as requiring evacuation of areas of the state or other like action, unless otherwise authorized by law.
The legislation goes on to stipulate that any state of emergency, whether proclaimed by the governor or the legislature, terminates upon the proclamation of the termination by the governor, or the passage of a concurrent resolution terminating the state of emergency. In no case shall a state of emergency last longer than 60 days, unless the legislature extends the time period of the state of the emergency by passage of a concurrent resolution.
Further, the legislature may also condition, limit, terminate, or expand any action or directive made either by the proclamation of the governor relating to the state of emergency or any executive order issued as a result of a proclamation. Upon proclamation by the governor of a state of emergency, the governor may call the legislature into special session.
As far as states of preparedness are concerned, House Bill 2003 establishes that whether proclaimed by the governor or by the legislature, they shall not last longer than 30 days unless the legislature extends the time period of the state of preparedness by concurrent resolution.
Finally, HB 2003 states that the emergency powers granted under the West Virginia Code do not authorize the governor to close or dictate religious practices in a house of worship during a state of preparedness or state of emergency.
During the pandemic, many Americans saw their respective governors wield unprecedented power with seemingly unlimited emergency declarations. This overnight shift in governance, coupled with a plethora of governors who abused their pandemic emergency powers, has left several states reevaluating constitutional statutes pertaining to emergency provisions and powers granted to the governor during a state of emergency. With HB 2003, West Virginia is no exception.
This change to the current West Virginia Code is paramount to prohibit Gov. Jim Justice (R)—and future governors—from excessively extending state of emergency powers long past the point of necessity, as seen time and time again across the country throughout the COVID-19 pandemic.
Simply put, HB 2003 creates commonsense restrictions and limitations on gubernatorial powers. Furthermore, it reintegrates the legislature into the governing process during states of preparedness and states of emergency. It aligns with many of the principles developed by The Heartland Institute during the pandemic, which legislators can reference upon any gubernatorial abuses of power.
Some of these ideas and principles include:
- The ability to immediately nullify an emergency proclamation via resolution.
- The creation of time limitations for an emergency order, renewable by the legislature.
- The ability to pass a resolution that requires the governor to call a special session to approve of an emergency proclamation if the legislature is out of session.
- Permitting an interim committee or group of legislative leaders to extend or reject emergency proclamations.
- The imposition of specific limits to executive authority during an emergency proclamation (i.e., restrict the governor from unilaterally closing businesses, closing houses of worship, or shutting down freedom of the press, and the right to bear arms).
There is a clear appetite among lawmakers and constituents to restrict gubernatorial overreach, especially after the coronavirus pandemic. Via this legislation, West Virginia lawmakers can catch up to their peers in other states who have already taken measures to rein in executive authority.
Co-equal governance, checks and balances, and the decentralization of power are bedrock principles of American democracy. Yet, these fundamental principles have been AWOL in West Virginia since the pandemic.
Fortunately, lawmakers in the Mountain State are beginning to stand up to gubernatorial overreach by reasserting their rightful place as a much-needed check against the executive branch.
The following documents provide more information about executive authority in a state of emergency.
Testimony Before the Georgia House Judiciary Committee regarding legislative and executive authority in a state of emergency.
Cuomo has issued multiple statements in an attempt to quell the backlash and frustration of New Yorkers and lawmakers in Albany to no avail.
The Heartland Institute hosted a webinar on Aug. 27, 2020 for state legislators to discuss how they can rein in governors, who wield seemingly unlimited powers in the wake of COVID-19. For many months, Americans have been abhorred by out-of-control governors who have imposed draconian lockdowns, which have decimated small businesses and people’s livelihoods. For instance, Gov. Andrew Cuomo has been roundly criticized for his heavy-handed and ineffectual response to the coronavirus outbreak in New York, which has drawn substantial blowback. Cuomo has also attempted to coverup his disastrous policy of forcing elderly patients with COVID-19 to return to nursing homes, where they spread the deadly diseases like wildfire among New York’s most vulnerable. As the days grow shorter and the temperatures dip lower, now is the time to begin exploring oversight over dictatorial governors and restore power where it rightfully belongs: With we the people, not I the governor.
Nothing in this Research & Commentary is intended to influence the passage of legislation, and it does not necessarily represent the views of The Heartland Institute. For further information on this and other topics, visit the Budget & Tax News website, The Heartland Institute’s website, and PolicyBot, Heartland’s free online research database.
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