Holding Governors Accountable

    After a contentious floor debate this afternoon, the House approved legislation clarifying the manner in which North Carolina’s governors may exercise certain authority granted them by the North Carolina Emergency Management Act.

    House Bill 264 passed 69 to 50, along party lines.

    The North Carolina Emergency Management Act, a law first passed in 1977, allows the Governor to declare a “state of emergency” when certain grievous situations arise (see General Statutes 166A-19.3.6) or are an imminent threat. Most commonly, these would include natural disasters (such as hurricanes) but can extend to acts of terrorism, large-scale accidents that threaten public safety, and, pertinently, public health crises such as the COVID-19 pandemic.

    Declared states of emergency give the governor certain extra powers. These are clearly delineated in Section 166A-19.30(a) of the North Carolina Emergency Management Act. They include:

    • Utilizing all available state resources to cope with the emergency;
    • Directing state and local law enforcement agencies to ensure compliance with any orders and regulations;
    • Authorizing measures to secure housing assistance from the federal government; and
    • Imposing prohibitions and restrictions in local areas when, for whatever reason, local authorities are unable to act alone, the emergency spreads across multiple jurisdictions, or the capability of local authorities is insufficient to meet the crisis.

    The governor is granted these powers, listed in part (a) of Section 166A-19.30, unilaterally.

    Part (b) of the same section grants additional but more expansive powers to the governor during a state of emergency, but already explicitly requires the concurrence of the Council of State. They include paragraphs:

    (2) To establish a system of economic controls over all resources, materials, and services to include food, clothing, shelter, fuel, rents, and wages, including the administration and enforcement of any rationing, price freezing, or similar federal order or regulation.

    (3) To regulate and control the flow of vehicular and pedestrian traffic, the congregation of persons in public places or buildings, lights and noises of all kinds, and the maintenance, extension, and operation of public utility and transportation services and facilities.

    (5) To perform and exercise such other functions, powers, and duties as are necessary to promote and secure the safety and protection of the civilian population.

    Under existing law, the Council of State’s assent is explicity required for the additional powers granted in part (b), specifically because of their draconian nature. They include wage and price controls, food and fuel rationing, rent moratoria (paragraph 2), the restriction of ordinary travel, the prohibition of peaceable assembly, the strict control of capacity limits in public buildings, which include places such as restaurants, churches, supermarkets, schools, and outdoor spaces (paragraph 3), and anything else the governor determines that is “necessary to promote and secure the safety and protection of the civilian population” (paragraph 5). For some additional background on this topic, we suggest reading “Theories of Emergency Powers: A Comparative Analysis of American Martial Law and the French State of Siege,” [Feldman, William (2005), Cornell International Law Journal: Volume 38 : No. 3 , Article 17].

    North Carolina is unique in that it shares its executive power among the heads of various executive agencies. The Council of State consists of ten members and includes the Governor, the Lieutenant Governor, the Secretary of State, the State Auditor, the State Treasurer, the Superintendent of Public Instruction, the Attorney General, the Commissioner of Agriculture, the Commissioner of Labor, and the Commissioner of Insurance.

    The Council of State, all elected statewide to four-year terms, represents various sectors of our state’s economy and social fabric.

    “One year ago, most people did not believe that the Governor had the power to shut down an entire state. Most at least assumed there were some checks and balances. Such consequential decisions should be made in a deliberative process with other elected officials,” said House Rules Chairman Destin Hall, a primary sponsor of the bill. “North Carolinians deserve confidence that the unprecedented restrictions placed on their families and businesses are the result of bipartisan consensus, not the absolute power of one man.” 

    The governor’s emergency powers are embodied in emergency executive orders. On March 10th of last year, Governor Cooper declared a state of emergency in response to COVID-19; since then, he has issued 63 COVID-related executive orders.

    In issuing his executive orders, Governor Cooper never sought or received the concurrence of the Council of State, as is required by the North Carolina Emergency Management Act. Many of those executive orders have led to extended lockdowns, school closures, the shuttering of thousands of businesses, and the destruction of countless livelihoods across the state.

    Here’s where it gets sticky. The North Carolina Emergency Management Act doesn’t define the meaning of the “concurrence of the Council of State.”

    Among other things, the legislation passed today in the House defines “concurrence” as meaning the consensus, within 48 hours, of a majority of the Council of State (failure to respond is considered assent). HB264 also requires that a statewide (defined as 67 or more counties) state of emergency expires in seven days unless a majority of the Council of State subsequently concurs; any extensions could be for no more than 30 days without additional concurrence of the Council of State.

    “This is not a Republican or Democrat issue,” said Rep. John Bell, another primary sponsor of the bill. “We can all agree that COVID-19 has required emergency action. However, the current law granting these emergency powers was simply not written with today’s challenges in mind. Our bill will clarify the law to encourage greater bipartisan consensus and ensure stronger oversight and accountability.”

    According to the Maine Policy Institute, North Carolina’s governor is granted some of the broadest emergency powers in the country. We are just one of only fifteen states that have no time limit on a Governor’s state of emergency declaration and we are just one of six states where a declaration issued by the governor can only be terminated by the governor. 

    The move today comes as other states across the nation are taking steps to reform their emergency management laws, including the Ohio General Assembly, which voted this week to override Governor DeWine’s veto of a bill to limit his emergency power. Kansas lawmakers also passed a bipartisan bill to install new checks on powers of the governor, and earlier this month, the Democratic-controlled New York legislature stripped Governor Cuomo of his emergency powers.

    The Emergency Powers Accountability Act now goes to the state Senate for further consideration. Despite its easy passage today in the House, the fate of the legislation is not clear;  Governor Cooper vetoed a similar bill last year which the General Assembly failed to override. 72 votes are required to override a veto in the House; 30 are required to override a veto in the Senate.