Governing by Executive Order During the Covid-19 Pandemic: Preliminary Observations Concerning the Proper Balance Between Executive Orders and More Formal Rule Making.

• Author: Deere, Kelly J.

TABLE OF CONTENTS ABSTRACT 721 TABLE OF CONTENTS 723 I. INTRODUCTION 724 II. EXECUTIVE ORDERS AND STATE EMERGENCY DISASTER STATUTES 726 A. Public Health Emergencies 731 B. Key Components of State Emergency Disaster Statutes 733 C. Ongoing Debate About Executive's Emergency Powers 735 III. IMPACT AND RESPONSE TO COVID-19 IN THE UNITED STATES 736 A. COVID-19 in the United States 737 B. Initial Governors' Response to the Pandemic 738 IV. JUDICIAL REVIEW 744 A. Civil Rights Challenges to Specific Executive Orders 744 1. Ban or Limits on Non-Essential Gatherings 746 2. Ban or Limits on Elective Surgical Procedures 752 3. Stay-at-Home Orders and Restrictions on Businesses 754 4. Moratorium on Evictions 756 5. Travel Restrictions--Mandatory Self Quarantining 757 B. Challenges to the Emergency Declaration/Executive Order Process 758 1. State Legislative Authority to Terminate or Extend Governor's Emergency Declaration or Order 758 2. Governor or State Health Official's Statutory Authority to Issue Emergency Declaration or Executive Order 760 V. SAMPLING OF INDIVIDUAL STATE RESPONSES TO COVID-19 PANDEMIC 765 A. New York 765 B. Florida 768 C. Michigan 771 D. Wisconsin 775 VI. ANALYSIS AND RECOMMENDATIONS 777 A. Checks on Governor's Emergency Executive Order Authority 778 1. Legislative Oversight and Statutory Limits 778 2. Sufficient Judicial Review 783 B. Lessons Learned Early On 787 C. Continued Need for Emergency Executive Orders and Greater Role for State Legislatures and State Agencies 788 VII. CONCLUSION 791 APPENDIX A 792 I. INTRODUCTION

Between March 2020 and June 2020, Michigan Governor Gretchen Whitmer issued more than 130 executive orders concerning the COVID-19 pandemic. (1) Colorado Governor Jared Polis issued about 115 executive orders and New Jersey Governor Phil Murphy issued over fifty in the same span. (2) Even those state governors that used executive orders more sparingly still issued a fair number with the Idaho Governor signing twenty executive orders and Missouri Governor signing fifteen. (3) These executive orders significantly affected citizens' everyday lives including requiring its citizens to stay-at-home, limiting gathering sizes and mandating the wearing of facial coverings in public spaces. (4) Many of these executive orders required non-essential businesses to shut their physical locations. (5) With most Americans at home and many out of work, governors or state public health officials issued executive orders with wide-ranging economic consequences such as placing a moratorium on evictions and banning a shut-off of utilities. (6) Some citizens, businesses and even some state legislatures did not simply accept these orders, but rather gathered in protest or legally challenged the orders as violating their constitutional rights. (7) But unlike most other emergencies in recent memory such as hurricanes, wildfires or even 9/11, COVID-19's reach goes beyond a city, county, state or even region. COVID-19 is not simply an American problem but has found its way to all corners of the globe. (8) In late fall of 2020, the pandemic virtually exploded with cases rising practically everywhere across the United States. (9) And with COVID-19 stretching into 2021 and beyond, governors continue to issue executive orders concerning the pandemic as the disease has evolved and more highly transmissible variants threaten to undermine vaccination efforts. (10) Indeed, as of May 1, 2021, forty-seven states still had an active state of emergency for COVID-19. (11)

Emergency executive orders do not go through the same rulemaking process as a statute passed by the legislature or even a state regulation that is required to go through the state's administrative procedure act. (12) Over more than a year into the pandemic, most governors had largely used executive orders to curb transmission as well as take aggressive economic action over the past year. (13) But should they? And if so to what extent?

Part I of this article examines the nature of state executive orders and how they are used in emergency situations. As shown through Appendix A, the article examines the various state emergency disaster statutes and the types of legislative limits on governors' powers. Part II provides background of the COVID-19 pandemic and how executive orders have played a defining role during this time. In Part III, the article reviews the litigation landscape surrounding emergency executive orders during the pandemic. Specifically, the article looks at recent civil rights challenges to certain types of executive orders. The article also reviews challenges by government officials such as the state legislature or governor concerning the statutory process for declaring an emergency or the constitutional validity of the statute itself. In Part IV, the article surveys four states' approach to the pandemic through 2020. And finally, Part V evaluates whether governors should use emergency executive orders where the pandemic is likely to go on for longer than a year. This article argues that governors should be able to quickly respond in some measure as long as COVID-19 is being transmitted in the communities but not for all areas. For those areas where there is a long-term ongoing response to COVID-19, the state legislature should pass an emergency or temporary statute, or a state agency should promulgate regulations to address a particular concern. Likewise, the state legislature may need to step in when the governor is not doing enough.

2. EXECUTIVE ORDERS AND STATE EMERGENCY DISASTER STATUTES

   In most every state constitution, the governor is vested with the chief executive power of the state and is commander in chief. (14) While in the early 20th century the office was viewed as weak, governors today garner greater powers and their responsibilities and duties have significantly increased. (15) For example, governors have "longer terms in office, increased veto power, and stronger budgetary authority." (16) During non-emergency times, governors are responsible for executing the state laws and managing the state executive branch. (17) One of the governor's most important duties is to submit an annual budget for review and approval by the state legislature. (18) Governors also have the power to appoint executive officers in the state agencies and in their cabinet. (19) And, as an important check on the legislative branch, all fifty state governors have the power to veto "whole legislative measures." (20) In a state of emergency, most governors have much broader powers. (21) They exercise these powers through emergency executive orders in order to prepare and respond to disasters of all sizes and shapes. (22)

   A gubernatorial executive order is a rule or order issued by the governor. (23) An executive order is usually comprised of three sections. (24) The first section, also known as the "whereas" section, contains the purpose of the order. (25) In this section, the governor articulates the reasons for the order and what she hopes to accomplish by it. (26) The second section contains the authority for issuing the order either from the state constitution or by state statute. (27) And finally, the third section comprises the substance of the actual order. (28) An executive order may be issued immediately and does not need to go through the same formal rule making process as a bill passed by the legislature or a regulation promulgated by a state agency. (29)

   Some state constitutions give their governors significant power during an emergency while others are essentially silent. (30) All fifty state constitutions give their governor power to call for a special session of the legislature. (31) Still, most governors rely on emergency powers granted to them by their state legislature through some type of emergency disaster statute. (32) This statutory framework grants to the governor (or in some cases a state health official) the authority to declare a state of emergency and to issue executive orders to prepare, prevent, respond and recover in connection with the emergency. (33) Most of these emergency disaster statutes were enacted post World War II with many of them passed in the 1970's. (34) One reason for granting governors such broad powers under these statutes is clear: some state legislatures meet "infrequently and often for only a few months each year." (35) For example, in March 2020, the New York State Legislature amended the Executive Law to give its Governor additional powers to "issue directives when a state disaster emergency is declared." It did so because these "changes ensure that the Governor has legal authority to confront these emergencies." (36) When a governor declares a state of emergency, he will likely need to state the nature of the emergency, define the specific regions or geographic areas subject to the declaration, the conditions which brought about the emergency, the duration of the emergency, and the authorities responding to it. (37)

   Under many of these emergency disaster statutes, governors have the authority to issue executive orders in response to a natural disaster - including a pandemic. (38) These orders are enacted swiftly with little warning or notice, much like the emergency these orders seek to address. (39) Once the emergency is declared, the governor may issue orders immediately. (40) For most states, their governor's powers under a state of emergency are broad, giving her the authority to suspend or amend any regulatory statute (41) Most of these emergency disaster statutes provide the governor with the power to garner resources to address the emergency, assemble the national guard, order evacuations and seize property. (42) Some governors have the power to issue orders for the protection of the health, safety and welfare of its people. (43) However, governors do not appear to have the authority to exempt constitutional state requirements during an emergency. (44)

   Under an emergency...