EMERGENCY RULE: A NEW PARADIGM FOR STATE AND LOCAL GOVERNANCE?

• Author: Diller, Paul A.

Introduction 723 I. State and Local Emergency Rule Since 2020 725 II. Implications of Emergency Rule for Local Governance 730 A. Prior Local Emergencies: The Example of State Takeovers 731 B. Emergency Rule Curtails Public Input in Local Policymaking 733 III. Potential Paths Forward 738 INTRODUCTION

The Covid-19 pandemic has brought to the fore the use of emergency powers at the federal, state, and local levels. (1) At the federal level, emergency powers have been used for decades under a smorgasbord of statutes, but the pandemic has provided a reason for presidents to use them in new ways. (2) At the state level, emergency laws have long existed but were previously used for shorter periods, often only in parts of the state, and most commonly for natural disasters and civil disorder. (3) Similarly, at the local level, mayors have long had access to emergency powers, but generally used them sparingly, such as for hurricanes, snowstorms, and riots. (4)

This Essay will explore the rising use of emergency power at the state and local levels, focusing mostly on the latter, and its implications for local democracy and arguments about local government structure. Part I is primarily descriptive, reviewing the ways in which emergency power has been used since 2020 at the state and local levels, mostly due to the Covid pandemic but also for other reasons. (5) Part II then compares this new form of emergency rule at the local level to prior examples of states using "emergency managers" to guide cities through fiscal crisis, arguing that post-2020 emergency rule is fundamentally different insofar as it is locally authorized. (6) Part II further explores some of the normative concerns raised by the increased use of emergency rule at the state and local levels--most notably, the lack of a formal process for public input on rules that regulate individual and entity conduct in significant ways. (7) Particularly at the local level, the increased use of emergency rule contradicts one of the longstanding justifications for home rule and local government: that cities and counties, as smaller governmental entities closer to the people, can be better fora for participation in self-governance. Finally, Part III charts some ways forward, speculating as to how the continued use of emergency rule may play out in the years ahead and what could be done to rein it in. (8)

1. STATE AND LOCAL EMERGENCY RULE SINCE 2020

   Mostly beginning in March 2020, governors around the country invoked emergency powers to a degree never quite seen before in their responses to the Covid pandemic. The governors of all 50 states declared statewide states of emergency or similar by March 15, 2020. (9) Mayors as well as county executives also declared states of emergency in March 2020. (10) Many of these states of emergency persist through the time of this Essay's writing, almost three years later. (11) New York City, for instance, remains in a Covid-related state of emergency uninterrupted for 34 months and counting, with Mayor Eric Adams most recently renewing the emergency in five-day increments. (12)

   The widespread use of emergency rule since March 2020 may have ushered in a new era of executive officials using emergency powers more frequently and for more issues, perhaps because legislators and voters became desensitized to its use. (13) In Oregon, for instance, both major parties' candidates for governor in 2022 pledged to declare a state of emergency for homelessness. (14) Indeed, within one day of taking office in January 2023, Governor Tina Kotek declared a state of emergency in the most populous parts of the state due to homelessness, to last up to one year. (15) The recently elected governor of Hawaii, Josh Green, also proclaimed a homelessness emergency early in his tenure. (16) Even with the threat of the Covid pandemic waning in the public consciousness and with President Joe Biden declaring in September 2022 that "the pandemic is over," (17) many jurisdictions, including some states, declared emergencies for the "tripledemic" of Respiratory Syncytial Virus (RSV), influenza, and lingering Covid beginning in the fall of 2022. (18) These emergencies followed several emergencies declared earlier in the year for mpox, (19) the disease formerly known as monkeypox. (20) In 2022, Mayor Adams declared a state of emergency in New York City to deal with the large influx of migrants crossing the southern border from Venezuela and other countries, in some cases transported to the city by U.S. states that border Mexico. (21) Also in 2022, Portland, Oregon, Mayor Ted Wheeler declared emergencies with respect to homelessness, post-pandemic cleanup, and gun violence; some of these declarations give him (or another commissioner) more power under Portland's idiosyncratic commission form of government. (22) In Los Angeles, newly elected Mayor Karen Bass declared a state of emergency for homelessness on her first day in office. (23) Governors and mayors have also declared emergencies in the last year due to supply chain issues generally, and the baby formula shortage in particular. (24) These are just some of what are likely many more examples of local emergency declarations in the last three years that did not relate to natural disasters, weather, or civil disturbances.

   In addition to the grounds for emergency discussed above, advocates and policymakers have proposed several others: climate change, (25) abortion access (particularly after the Supreme Court overturned Roe v. Wade (26) in Dobbs v. Jackson Women's Health Organization (27) in late June 2022), (28) racism, (29) and police violence. (30) Based on available evidence, federal, state, and local governments have generally stopped short of formally invoking emergency powers to respond to these issues, but they have come close. Several local governments, for instance, have declared racism a public health "crisis," thereby signaling an appreciation of the problem without fully unlocking the emergency powers toolkit. (31)

   To be clear, the declared state and local emergencies vary significantly in the extent to which they have been the font of significant changes to the pre-existing legal status quo. Some, such as the Covid emergencies, led to a tremendous amount of regulation. Mask mandates and business closures would have been unheard-of at almost any other time in American history, and they were enabled by emergency rule. (32) Other declarations of emergency appear to be almost as much about symbolism as they are about substance. Mayor Adams' baby shortage formula emergency executive order, for instance, consisted of 11 "whereas" clauses and only one substantive provision: a prohibition on price gouging for the product while the emergency remained in effect. (33) Even if the order is limited in substance, by declaring an emergency, the executive official can show the voting public that he or she is taking the problem seriously and perhaps receive some helpful press coverage to that effect. An emergency like Covid led to far more regulations than did a baby formula shortage emergency, for instance, likely due to the novelty of the risk posed by Covid as a brand-new disease, the public's willingness to accept interventions, and the perceived widespread nature of Covid's threat early in the pandemic. (34)

   At the state level, legislators and voters have responded to the expansive use of emergency rule in different ways. In some states, legislatures or the voters (through direct democracy) enacted statutory or constitutional changes that constrained the emergency powers of governors and other executive officials. (35) Many public health professionals and commentators have referred to this reaction as a "[b]acklash." (36) In many of the states that reformed emergency rule, such as Kansas and Kentucky, the legislature was of a different party and sought to constrain the governor. (37) These restraints took the form of time limits on emergency powers and other constraints, some of which could be overridden only with the legislature's approval. (38) In Pennsylvania, the legislature referred a constitutional amendment to voters that similarly constrained the governor's emergency powers, which the voters passed in May 2021. (39) In some states, such as Ohio, Indiana, and New York, legislatures limited governors of the same partisan affiliation, (40) sometimes due to other issues such as the nursing home death reporting and sexual harassment scandals in New York under Governor Andrew Cuomo. (41) At the local level, however, there has not yet been any similarly widespread movement to reform emergency powers, perhaps due to the reasons discussed below.

2. IMPLICATIONS OF EMERGENCY RULE FOR LOCAL GOVERNANCE

   Regardless of the degree to which the powers are used, if emergency rule has indeed become more normalized since 2020, scholars of local government must reckon with what that might mean at the local level specifically. One of the primary benefits of local governance, to many commentators, is the increased opportunity it provides for resident and citizen involvement in democratic decision-making. (42) Scholars have explained how other forms of emergency rule--namely, state takeovers of local governments--threaten this participatory aspect of local governance. This Part explores that critique and then contrasts more recent forays into emergency rule with those historical examples and the scholarly discussion surrounding them.

   1. Prior Local Emergencies: The Example of State Takeovers

      The local government law community has thoroughly examined state-imposed emergency managers or boards in cases of local fiscal distress or poor school district performance. (43) These emergency managers or "takeover boards" have at times exercised near "dictatorial" powers in an attempt to clean up or restructure cities and school districts. (44) In one of the most famous instances, in the early 2010s Michigan's governor appointed...