Reconvene the State Legislatures ASAP
Much angst has recently been expended on whether the President of the United States has authority to “order” state governors do this or that with regard to COVID-19. However, this conflict rests on a misunderstanding of power in the U.S. federal system. The U.S. Constitution’s 10th Amendment is clear in granting broad powers to the states, and those governments — at least the executive branches of those governments — are exercising this power. So, while the Constitution delineates the limits of power for the federal government, it does not primarily invest the federal executive with the task of keeping state governors and their executive bureaucracies in check. That task falls to the state legislatures, most of which have adjourned “until further notice”; only about a dozen remain in session in some fashion. We have spent perhaps too much energy critiquing the federal response while the states steamroll ahead unchecked. With the COVID-19 vaccine at least a year away, we had better get the rest of the state legislatures back in session in some form if we want a say in how we’re treated in the “new normal.”
“Freezing the problem” vs. ongoing response
Much of my previous career (military) was spent managing emergencies. The first steps in most emergency responses have a goal of “freezing the problem,” so that the team can bring more resources and people to bear. These initial actions must be taken quickly, often by a single decision-maker, and usually on sketchy or false information. These emergency measures almost certainly cause widespread concern and inconvenience. Left in place too long, the measures do more harm than good: ambulances do not magically teleport through locked gates, for example. As the incident unfolds, more people are needed in the headquarters, not just to staff the execution on behalf of the decision-maker, but also to ensure impacts to the surrounding community are assessed, limited, and mitigated.
We expect governors for a time to take bold action in preventing or responding to emergencies, including steps that temporarily curtail our convenience and liberties. However, similar to presidential use of the War Powers Act, we presume these decrees will last for a short period of time, after which the representatives of the people should be consulted. Hurricanes, tornadoes, floods, and even terrorist events end within few days or weeks. While these catastrophes might leave lasting damage that require years of recovery, we expect that the state legislatures will reconvene to make policy on regarding such residual effects as soon as they are physically able.
We have reached that point. For a time, we all (governors included) assumed that a few weeks’ worth of social distancing would curb the COVID-19 plague and allow us to return to the previous status quo. We and all our governors now know that’s not the case; long-term adjustments need to be considered. Elected representatives need to return and engage. The decisions before us will affect the livelihoods, health, and mortality of millions. Governors and their staffs of experts should not be left unchecked in addressing these issues, even if we agree with them. While the virus threat persists, the time for rule by decree has passed.
The dangers of contentment
This is not about whether we agree with the current gubernatorial decrees or not. One might presume that many state legislators are happy to stay home, content with their governors’ actions. However, the way we are governed, and preserving room for our voices through our representatives, matters. The smattering of protests on the streets and at governors’ mansions might be earnest and sometimes warranted, but strategically misplaced. Executives have little incentive to respond to the people’s will once elected. Legislators might prove more pliable.
That said, clamoring for a special session of our respective legislatures may not suffice to get their attention. In 14 states, only the governor can call legislative assemblies to special sessions. Even in the other 36 where the legislature can recall itself, most require supermajorities, and in six of those states the governor must approve their request. Partisanship will likely impede our petitions as well: in a state where one party holds both legislative majorities and the chief executive, there is no political incentive for those majorities to get in their governor’s way.
Nevertheless, we the people need to ask, if we want a say in how we put food on the table and who decides whether factories, churches, liquor stores, or abortion clinics get designated as “essential.” We should be wary that our contentment with our governor’s actions may lull us into complacency about liberty. These issues will require active, ongoing policy management at the state level for months and years to come. We need to get the rest of the legislative teams back on the field.
Quinn Skinner is a retired naval officer with more than two decades of managing risks in operational environments, including in emergencies. The opinions expressed here are his own and do not represent those of any organization with which he has ever been associated. This post builds on his previous offerings on managing current and future risks with COVID-19 and the dangers of over-reliance on the federal government for rescue.