From 2022:
"When Wolf imposed those new shutdowns late in 2020, Serulneck wasn't the only business owner to groan—or to shrug. Hundreds of Pennsylvania businesses defied the edicts. Some were punished with fines and threatened with loss of their licenses...
Governors generally enjoy broad powers during emergencies, which allow them to command the state government in response to a terrorist attack, a hurricane, or, yes, a pandemic. But an emergency is, by definition, a discrete, time-limited event: an immediate crisis that requires an immediate response.
The COVID-19 pandemic has challenged our understanding of what counts as an emergency and when the special powers it triggers should no longer apply. Emergency powers are supposed to give governors the ability to respond quickly to unexpected circumstances. But at some point after the initial crisis has passed, doesn't an emergency transform into an issue that can be dealt with via the normal channels of government?
"If you were to use medical terminology, you'd say it goes from being an acute issue to a chronic one," says Meryl Justin Chertoff, executive director of the Project on State and Local Government Policy and Law at Georgetown Law School...
Many state legislatures grappled with that issue in 2021, as more than 300 measures to limit governors' unilateral emergency powers were proposed in 45 states. Such measures have been approved in at least a dozen states—including Pennsylvania, where lawmakers and the state's voters approved a pair of constitutional amendments restricting emergency powers. Those laws, in turn, have sparked opposition from governors' offices and from the public health community, which overwhelmingly backed 2020's harsh lockdowns.
These debates speak to fundamental questions about how democracies should approach not only the COVID-19 pandemic but other problems, ranging from homelessness to climate change. Does effective government require quick, centralized decisions, or should it rely on deliberation and decentralization?
At a time when governments at all levels seem to veer from crisis to crisis as a means of getting things done, this new wave of laws is a reminder that a serious, ongoing issue is not the same as an emergency that justifies setting aside the usual lawmaking process. Put another way, there is a difference between giving a governor the power to respond to a deadly disease at the outset of a pandemic and, six or eight months later, giving that same person the power to unilaterally decide on Monday that bars must close on Wednesday night...
If it was going to go on much longer, Wolf would have to get the consent of the governed. "The citizens of Pennsylvania should have a say in reining in this extended, unilateral power on display during this emergency," Pennsylvania Senate Majority Leader Kim Ward (R–Westmoreland County) said on the state Senate floor in January 2021, as she announced a new plan to give the legislature a more prominent role in statewide emergencies. "They are the ones who suffer the consequences when checks and balances don't exist."
For the first 11 months of the pandemic, those checks and balances were indeed out of whack. Wolf's initial emergency order, issued in March 2020, was supposed to expire after 90 days, but it had been renewed by the governor on four occasions and was still in force. He ordered schools closed and banned "non-life-sustaining" businesses from operating.
The specifics were at times confusing. Truckers were allowed to work, but truck stops were shuttered. Small businesses whose products were deemed nonessential, such as furniture stores, were ordered to close, even though big-box retailers like Walmart were still free to sell chairs and tables alongside "essential" items. Laundromats were closed, leaving some Pennsylvanians without the means to wash their clothes, but they were free to buy booze from state-owned liquor stores. One of Wolf's economic advisers quit in protest, blasting the governor for the "devastating economic fallout your decisions have wrought on our state" in his resignation letter...
In a democracy, Georgetown's Chertoff says, "it is problematic to have governors doing so much for so long by executive order." She adds that bringing lawmakers into the process earlier might have helped avoid some of the politicization that has plagued the pandemic response. If members of both parties had voted to approve restrictions on businesses or to mandate mask wearing, it would have been harder to treat those policies as partisan issues.
But states entered the pandemic with broad emergency-power laws already on their books. Those laws were not crafted with a yearslong health crisis in mind...
That governors have fought legislative attempts to curtail their power is not surprising. But some of the loudest opposition to emergency-power reforms has come from the public health establishment.
In state after state, public health officials have lined up to defend arbitrary and aggressive pandemic rulemaking against the constraints of the democratic process. In doing so, they've defended both Democratic and Republican administrations, showing a bias toward unilateral power rather than any particular political party...
The public health response to these bills has accurately described the circumstances—in this case, the voter dissatisfaction that is motivating the reforms—while exaggerating the potential consequences of deviating from the course plotted early in the pandemic. Public health officials have been useful in projecting the course of the pandemic and in developing mitigation strategies. But their recommendations, from the initial lockdowns to today's stay-masked-even-if-you're-vaccinated guidelines, have routinely failed to account for the practical, human considerations that are a fundamental part of crafting policy. ..
COVID-19 is driving the use of emergency powers right now. But Dew worries that states without limits on those powers could find themselves facing other kinds of unilateral edicts in the future. Any one of dozens of quasi-emergencies that supposedly require a response from state governments could invite the sort of open-ended, top-down direction from the governor's office (or the White House) that has been a hallmark of the pandemic.
"That's not the way our government is supposed to function," Dew says. "Emergency powers are there for the governor to steady the ship in the middle of a storm, not to set a new course."
For special interest groups looking to impose large-scale policy changes that have been stymied by the democratic process or by legal and constitutional issues, the pandemic has not been a warning about the dangers of unilateral executive power. It has been a roadmap. Left-wing activists and even some Democratic lawmakers are increasingly pushing for governors and presidents to exert greater powers to deal with "emergencies" that would more accurately be described as long-term, chronic issues.
"We've already seen calls in opinion pages to declare emergencies for things like climate change, homelessness, gun violence, and opiate abuse," Dew says. "Those are serious issues that the government may choose to address. But if it does, it has to be through the state's lawmaking body."
Just a week after Joe Biden was sworn into office, Senate Majority Leader Chuck Schumer (D–N.Y.) called upon the new president to declare climate change a national emergency. "If ever there was an emergency, the climate crisis is one," Schumer told MSNBC's Rachel Maddow.
The majority leader was echoing a December 2020 letter to Biden's transition team from more than 300 groups. It urged the incoming administration to invoke the National Emergencies Act as a remedy for climate change, a move that would give Biden the unilateral authority to impose the policies favored by those groups. Among other things, The Washington Post explained, Biden could use such an order to direct military spending toward green energy projects, ban oil exports, or impose tariffs on countries he thinks are polluting too much...
Prior to his resignation, New York's Cuomo became the first governor in the country to issue an emergency declaration targeting gun violence. The order, issued in July, redirects $139 million in state spending toward initiatives that are supposed to curtail a spike in shootings since the beginning of the pandemic.
For the most part, that means more policing. Cuomo's order created a new task force charged with stopping guns coming over New York's borders. House Speaker Nancy Pelosi (D–Calif.) has expressed support for a similar emergency declaration at the federal level.
But the most notable part of Cuomo's order is how long it will remain in force: "until further notice." That's not a response to an emergency; it's permanent policy making...
If past crises such as 9/11 and the subsequent war on terror teach us
anything, it's that even explicitly temporary expansions of government
power can easily become permanent. The difference this time around is
that fewer people are even pretending their wish list measures are
supposed to be temporary"
