Next week, the COVID-19 national public health emergency is set to terminate, three years or 1,166 days after it was initially declared. Here in Arizona, the state of emergency was ended by Governor Ducey on March 30, 2022, just over two years or 749 days after it was initially declared. For those counting, that’s quite a bit longer than the promised 15 days to “slow the spread.”
COVID-19 brought with it unprecedented uses and abuses of emergency powers in every state, Arizona included. Businesses were arbitrarily shut down. Workers were told their jobs were nonessential. People were prevented from going to church, couldn’t visit their dying parents and grandparents in hospitals, and kids were put in masks and barred from their schools. Many questioned how these mandates were even constitutional. Lawsuits were filed, but executive emergency authorities were largely upheld – including in Arizona.
That’s why our lawmakers are currently considering a critical constitutional amendment sponsored by Representative Chaplik, HCR2039, to reign in these powers, provide proper legislative oversight, and ensure checks and balances to protect the rights of individuals.
Where These “Emergency” Powers Come From
Many have appropriately wondered where the legislature derives the authority to enact such statutes that delegate this awesome authority to the Governor and how they are even constitutional. After all, there isn’t an explicit provision in the Arizona constitution saying they can. But this is a key aspect of our system of governance. Unlike the U.S. Constitution, which consists of explicit enumerated powers for Congress, states have inherent powers, like the police powers, and state constitutions act to limit, not explicitly enumerate each one of them.
Whether we like it or not, we have a long history of courts interpreting these inherent police powers of states broadly. This includes the U.S. Supreme Court upholding state laws that require individuals to quarantine (Compagnie Francaise De Navigation A Vapeur v. La. State Bd. of Health – 186 U.S. 380, 22 S. Ct. 811 (1902)), mandatory vaccinations for smallpox (Jacobson v. Massachusetts, 197 U.S. 11 (1905)), and even the destruction of private property to secure the safety of the general public (Miller v. Schoene, 276 U.S. 272 (1928)).
In other words, it was within the inherent authority of the legislature to enact these emergency power statutes to begin with.
However, just because they can, doesn’t mean they should. We can and ought to continue the public policy conversation about reforming and restricting current emergency powers statutes. Considering the difficulty in pulling back a power already delegated to the executive (requiring Governors to relinquish their power), another solution must be crafted, and that solution is HCR2039.
Arizona’s Emergency Powers Statutes
Our emergency powers statutes were enacted in the early 1970s, more than fifty years ago. They sat quietly on the “books” with little discussion, though many (there are currently 41 active declarations) “emergencies” have been declared under them, some even lasting for decades, including a drought emergency that has been in place since 1999. But by definition emergencies are temporary, not permanent. COVID-19, and the resultant unprecedented use of the powers granted by those statutes, spurred a necessary and overdue public policy discussion about the extent of these powers and the propensity for them to be abused.
Emergency Powers Are Not, Nor Should They Be, Unlimited
Individuals can and ought to continue to sue when the state has infringed on their rights during an emergency. Although Arizona’s emergency statutes hand over broad police powers, the Governor “can only take actions consistent with other statutes and the constitution.” That remains true with HCR2039.
The Governor cannot operate outside of statute or other constitutional protections of individual liberties. If he or she does, people can and should sue, and the courts will consider the specifics of the case to determine if the violation of an individual’s liberty was outweighed by a legitimate and compelling state interest. That judicial check will remain the same under HCR2039.
Emergency Powers Are Necessary
It is true that our emergency powers statutes currently hand over broad authority to the Governor, including “all police powers” of the state. Statutory reforms are necessary to more narrowly tailor these delegated powers. But the fact is emergencies do exist, such as wildfires and floods, which require quick, executive action – something a deliberative body, such as the legislature, is not designed to handle.
Just look at Gila Bend, which in 2021 was completely overcome with monsoon rains resulting in the death of two and the injury of 30. Governor Ducey quickly declared a state of emergency to expend $200,000 and deploy necessary resources to help the community recover. The quick action was critical, but these emergency declarations must be limited, they must be temporary, and there must be adequate legislative oversight to protect the liberties of individuals.
HCR2039 Is the Solution to Protect the Rights of Arizonans
While reforms are necessary, it’s crucial to have a mechanism in place now that ensures proper checks and balances of the delegated authority no matter what current or future statutes on emergency powers look like. The most appropriate place to resolve these fundamental questions of how our government functions and how to employ checks and balances is within the framework of the constitution. Right now, it is entirely devoid of a process for the legislature to check executive authority.
That’s why it’s critical that the legislature send HCR2039 to the voters. If passed, it answers this question in the Arizona Constitution to restrict the power of the Governor during a declared emergency. After the declaration, the Governor would be required to call the legislature into a special session by the tenth day and it would automatically terminate after 30 days unless extended by a concurrent resolution of the legislature.
HCR2039 does not expand, confer, or endorse the existing breadth of emergency powers in the constitution. The legislature could (and should) now, and after passage of HCR2039, place more statutory restrictions on the powers it delegates in times of emergencies. They could even repeal them altogether.
Critically, HCR2039 enshrines meaningful legislative oversight in the constitution to ensure proper checks and balances to protect individual liberties. That’s why it is supported as an essential measure by pro-liberty groups like the Arizona Free Enterprise Club, Goldwater Institute, Republican Liberty Caucus of Arizona, EZAZ, and Arizona Freedom Caucus legislators. It’s also why the Democrat caucus is unanimously opposed, as are groups like the Arizona Public Health Association who wish to maintain the status quo, and not restrict the rule-by-one powers of the Governor.
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