Providing a check against the governor's unlimited authority to renew and modify State of Emergency orders is the goal of a new bill sponsored by State Rep. Rich Collins (R-Millsboro) and State Sen. Bryant Richardson (R-Seaford).
[caption id="attachment_188115" align="aligncenter" width="2560"] DBT PHOTO BY JACOB OWENS[/caption]
At present, the Delaware Code (Title 20, Chapter 31) gives the governor the power to declare a State of Emergency in response to, or in anticipation of, any emergency or disaster posing a threat to the public. The initial State of Emergency declaration can last for up to 30 days. Afterward, the governor has the unrestricted authority to renew and modify the order at his or her discretion. The state legislature has no role in the process and no ability to alter or limit the orders in any way.
On Christmas Eve, Governor John Carney renewed his State of Emergency declaration for the tenth time since it was first initiated on March 12 to fight the spread of COVID-19. On Friday, he signed the fifth revision to the omnibus emergency order, continuing the restrictions, including the stay-at-home advisory and universal indoor mask mandate.
Rep. Collins and Sen. Richardson said they understand that any governor needs to have the freedom and flexibility to act quickly in response to sudden, dire circumstances. Their bill preserves the chief executive's ability to declare an initial State of Emergency.
They also note that their bill should not be viewed as a criticism of Gov. Carney, but rather as a reaction to the flaws of Delaware's current State of Emergency law that the COVID-19 pandemic has revealed.
However, both legislators say there is a crucial need to revise the law, which places an undue amount of authority in a single branch of government and gives citizens no voice or recourse as to how that power is wielded over them.
"One of the strengths of this nation is that we have a three-part government – the Executive Branch, the Legislative Branch, and the Judiciary – with each reining-in the excesses of the others," Rep. Collins said in a statement. "But that balance doesn't exist during a State of Emergency. It gives the governor and his Executive Branch agencies supreme authority to take actions that carry the weight of the law, but which citizens cannot impact. We need to fix this, so the people again have a say in how their government works."
Sen. Richardson agrees that the bill would add a needed check on unrestrained authority. "Some may ask, is this bill necessary? Whenever our Constitutional rights are being set aside, the General Assembly needs to weigh-in. There is a heavy responsibility on our governor to make the right decisions. No governor, no matter how well intentioned, should be acting alone for months on end, without the concurrence of the General Assembly."
The new bill (House Bill 49) is similar to legislation introduced by the two lawmakers late last April but expands and refines that measure, proposing the following reforms:
The governor's ability to declare an initial State of Emergency for up to 30 days would be preserved under the bill.
When an emergency extended beyond 30 days, the General Assembly would need to approve any State of Emergency renewal, as well as any modifications made to subsequent orders. This requirement could only be waived if the House of Representatives and Senate leaders agreed that their respective chambers could not convene.
The governor would retain the authority to terminate emergency orders, without approval, when the emergency had passed.
Any new emergency order (unrelated to weather) issued within six months of an earlier order issued for similar reasons would require General Assembly approval.
Rep. Collins said his bill would be unlikely to have any bearing on the current COVID-19 response, but he says the reforms it contains would improve the process should the state find itself in a future extended State of Emergency.
Sen. Richardson said the measure has thus far only gained the sponsorship of Republican lawmakers, but he is hopeful legislators on both sides of the aisle will support it. "This is not a partisan bill," he said in a statement. "There is no aspect of this proposal that should be pitting liberals against conservatives or Democrats against Republicans. This bill would allow all legislators to better represent the interests of their constituencies during the most desperate of circumstances – a situation requiring a prolonged State of Emergency. I cannot think of a valid reason why any state lawmaker would vote against a measure that would make them more effective advocates for their districts."
The bill is currently pending action in the House Administration Committee.