In March of 2020, New York experienced a health emergency in the form of the Covid-19 virus. In just a few days’ time, and with very little warning, they went from a few confirmed cases to several thousand cases. On March 13 there were fewer than 100 new cases. A week later, on March 20, there were almost 2,000 new cases. This was a true emergency. It arrived without warning. There was little time for deliberation. Something had to be done immediately to stem the tide.
Oklahoma was in a very different position. As late as June 8 there were fewer than 100 new cases a day. Oklahoma had three months to prepare for a potential crisis. Perhaps the numbers would have been higher sooner if not for the late-March lockdown order. (Remember when it was supposed to be three weeks to flatten the curve? Boy did they fool us with that one.) Even so, there were three weeks between New York’s emergency and the first “emergency” steps Oklahoma took to slow the spread. So why did the Governor need emergency powers? Do we really believe the legislature couldn’t convene (they were already in session) and come to a consensus regarding the best way to combat Covid?
You don’t have to look far back in history to see the dangers of emergency powers. For instance, California is still using them to disastrous effect. On the other hand, few would argue that no emergency ever befalls Oklahoma. Natural disaster is a part of life in tornado alley.
So, what to do? Emergencies are, by their nature, unpredictable. We don’t know when or where they will strike. We don’t know what the best response will be. Emergency powers must be flexible to be useful. But they must also be limited to ensure liberty. Time is one way of limiting the damage. If an emergency declaration is allowed to stretch on for months at a time, people may begin to accept a new normal. But emergencies don’t last for months. They don’t really even last for weeks. The situation that initially gives rise to an emergency might last a long time, as the past year and a half has proven.
Thinking about the timeline above, was there ever really a time when Oklahoma couldn’t have operated under ordinary legislative rule? That is, was there ever a time when the Covid crisis was so sudden that we could not have passed laws under the normal process that would restructure our lives to reduce the risk of Covid transmission? Leave aside whether the responses our leaders handed down were the best ones. If no emergency had been declared by the governor and the mayors of various cities and towns, wouldn’t there have been time for the legislators to act?
Think back to spring 2020. Could the state legislature have passed Covid-specific laws through both houses? Would those laws have received the Governor’s signature? If not, doesn’t that lead you to only a couple conclusions? Either the crisis was not severe enough to force legislators to prioritize it above all other lawmaking concerns, or the answer was not clear-cut, and lawmakers couldn’t agree on the right action. Either way, that leads to the conclusion that emergency executive powers were out of place in Covid response.
Think about it this way: if there was an airborne version of Ebola making its way across the country, wouldn’t you expect the Oklahoma legislature to act quickly to impose lockdowns? On the other hand, even without lockdowns, would you go outside if you didn’t have to? The more likely scenario is that the legislature would have to force “essential” businesses to stay open. Even grocers and doctors would shutter their businesses until the spread was stopped.
Emergency powers are necessary. But emergencies are necessarily short-lived. As 1889 argues in its latest publication, emergency powers should come with strict time limits. One week ought to be long enough for the legislature to convene. If legislators can’t immediately create new policy, they could extend an emergency for two more weeks. It’s difficult to imagine a true emergency that couldn’t be handled by ordinary lawmaking after three weeks under emergency declaration. After three weeks, the crisis is either not an emergency, or it doesn’t have a clear answer. Either way, emergency powers are inappropriate.
If the legislature is still letting the executive run the show after three weeks, they are probably trying to avoid the terrible responsibility of being part of a multi-member body guiding the state through a crisis. Their reluctance is understandable. It’s not an easy job, and isn’t likely to increase their popularity. But it is a responsibility they sought out when they ran for office. It’s a responsibility they must fulfill. This reluctance, and the difficulty of having so many chefs in the kitchen, are exactly why we want the legislature making the laws. Now that the crisis has passed, they should recommit themselves to seeing the job through the next time. Allowing emergency executive powers with no time limit is playing with fire. Best to put the matches out of reach, and enact strict time limits for future emergencies.
Mike Davis is Research Fellow at 1889 Institute. He can be reached at [email protected].