Since the outbreak of the COVID-19 pandemic, Gov. Jay Inslee has used the power of his office to aggressively protect public health. Questions remain, however, regarding the extent of that power.
As The Columbian wrote editorially in April 2021: “Imagine, for a moment, if a governor decided that gun violence in the state is an emergency and declared an indefinite halt to all gun sales. Or if another governor decided that abortion was an emergency and closed reproductive health clinics. Either scenario is extreme and would invite numerous court challenges, but the absurd examples demonstrate the need to strengthen the checks and balances in state government. No governor of either party should have unfettered power.”
Inslee’s mandates regarding business shutdowns and the wearing of masks have been upheld by the courts in the face of myriad challenges. As one federal judge ruled: “The plain meaning of the governor’s statutory authority to proclaim a state of emergency in the event of a ‘public disorder’ clearly encompasses an outbreak of pandemic disease.”
But while legislators should avoid re-litigating Inslee’s actions, they should reconsider the powers afforded to Washington’s governor, regardless of party affiliation.
According to the Maine Policy Institute, our state ranks among the bottom four in terms of governmental balance of power. Washington and a handful of other states “bestow on their governors the sole authority to determine when and where an emergency exists, and when an emergency ceases to exist.”
Lawmakers are considering legislation to scale back those powers. Under state law, emergency orders do not have an expiration date, and they can be renewed at the behest of the governor. Governors have authority over “activities as he or she reasonably believes should be prohibited to help preserve and maintain life, health, property or the public peace.”
During the early days of the coronavirus pandemic, such authority was necessary. Quick, decisive action was required to confront a previously unknown disease, and Inslee consulted immunologists and pandemic experts to chart a course of action.
But the idea of such power belies the notion of representative government. The public — through elected legislators — should have a say in the continuing response to a pandemic. And it should have a say in any future emergencies, once the initial shock has subsided.
Inslee eschewed opportunities to engage with the public through their representatives by failing to call a special session of the Legislature in late 2020. By then, additional facts about the pandemic could have helped inform a collaborative response. But opting to not call a session also was within Inslee’s purview.
One bill under consideration would allow legislative leaders — the majority and minority leaders in the House of Representatives and the Senate — to cancel a state of emergency after 90 days. That, however, does not address the prospect of an emergency becoming politicized as the pandemic has, leading to a deadlock.
Instead, legislation should dictate that an emergency is automatically over after 90 days or 120 days and that lawmakers are the ones who may renew the orders.
Inslee’s approach to the pandemic has been effective. Washington ranks among the 10 lowest states in terms of COVID infections and deaths per capita.
But the question about gubernatorial power is not really about the pandemic. It is about a balance of power during future crises.
