GOVERNOR’S EMERGENCY POWERS

Undisputed Legal

In the COVID-19 crisis, governors were seen to evoke unprecedented authority under their posts. In 2020, all fifty governors declared a state of emergency due to the outbreak. Under such pronouncements, companies may be shut down, citizens must stay home,  mask use would be mandated and taxes and payments were to be curtailed.

The authority of democratic governors, like Pennsylvania, Louisiana, Kentucky, and North Carolina, is usually limited by republican-controlled legislatures. However, this is not true solely for opposing parties.  Republican legislatures have also tried to curtail the Republican governors in Ohio. And democratic legislatures, notably in New York, have sought to restrict democratic governors.

Pennsylvania was the first state to vote and limit government authority when a little over half of the primary electors decided on May 18th  to give legislators greater influence in disaster declarations.

THE SITUATION IN KENTUCKY

The current state of the governor’s powers in Kentucky sees its roots in the COVID-19 crisis. In May 2020, the Kentucky Supreme Court unanimously decided that a temporary injunction preventing new legislation restricting emergency powers by Kentucky Governor Andy Beshear was inappropriate and ordered the case to be dissolved. Essentially, this provided strength to the Governor’s position, insofar as the Supreme Court said KRS 39A stipulates that all emergency orders and administrative regulations issued by the governor ‘shall have the full force of law.’ A prerequisite for the governor’s powers to kick in is that a copy is filed with the Legislative Research Commission. In sum, the case law provides that Beshear proclaimed the state of emergency to be appropriate and used the power that the General Assembly legally delegates to him, ‘consistent with decades of Kentucky precedent, which we will not overturn’ The case law also pointed out that since the Kentucky legislature only meets part-time this would leave a hole in the state’s emergency powers to develop rapidly. 

Beshear, in reaction to the COVID-19 pandemic, proclaimed a state of emergency on 6th March 2020. Following legal arguments filed by the business owners, in November the Kentucky Supreme Court decided in favor of the COVID-19 limitations imposed by Beshear. This reversed a decision of the lower court for businesses that had disputed the limitations.

THE DELINEATION OF GOVERNOR’S POWER IN KENTUCKY

The situation changed in February of 2021, whereinafter the Kentucky General Assembly passed the bills HB1, SB1, and SB2, the ethos of which were to cut into the governor’s ability to take unilateral action in an emergency. 

Beshear then filed a complaint claiming that the law contravened his executive authority unconstitutionally. In March, Judge Phillip Shepherd of the Franklin County Circuit issued an order which temporarily suspended the legislation. The Kentucky Supreme Court, however, decided on Saturday that the injunction was incorrect and remitted the case upon which it instructed the lower court to rescind the order.

The court concluded that under the circumstances an interim injunction was not justified. The Court observed that the Governor did not have any implicit or inherent emergency authority beyond the legislative authorities conferred upon him. As the executive branch maintained the ultimate say on administrative rules, the court also ruled that the law does not contradict Sections 27 and 28 of the constitution of the State, which requires the strict separation of powers.

Kentucky’s Supreme Court urged a lower court to approve a spate of legislation to limit executive powers for Gov. Andy Beshear, which may have large, immediate implications for individuals and businesses.. Because the legislation was lawfully passed, the governor’s complaint did not present a substantial legal question that required an injunction. The court concluded that the lower court abused its discretion in finding otherwise.

THE NATURE OF A GOVERNOR’S POSITION

The governors of the fifty states and five commonwealth and territories serve as top executive officials, all democratically elected. Governors act as state managers and are in charge of executing state legislation and supervising the functioning of the state executive branch. As the leaders of states, governors seek and explore continuously updated policies and programs using various instruments, including executive orders, management budgets, and legislative bills and vetoes.

Governors carry out their duties and leadership goals with the help of departmental and agency heads, many of whom they are authorized to choose. In most instances, the majority of Governors are entitled to nominate judges to the State Court, based on a list of candidates provided by a Nomination Committee.

THE GOVERNOR’S DUTIES AND RESPONSIBILITIES

Although governors share many duties and responsibilities, the extent of governorship varies from State to State in line with state constitutions, laws, and traditions, and the number and magnitude of government officials are frequently rated by political historians and other observers of state politics. Majorly, this may involve ranking considerations like [A.] qualifications and tenure [B.] legislative concerns including budget and veto power and [C.] appointment sovereignty

Although not necessarily a ranking factor, the power to issue executive orders and take emergency actions is a significant gubernatorial responsibility that varies from state to state. The criteria for gubernatorial candidates and officeholders range from State, commonwealth, and area to minimum eligible age, U.S. citizenship, and state residency. The Governors’ minimum age requirements vary from no explicit provision to thirty-five years old. The U.S. citizenship requirement for government candidates varies from a formal twenty-year period to nothing either. Further, the criteria for state residence vary from no formal provision to seven years. 

In the United States, a governor acts as Chief Executive Officer and Commander-in-Chief, serving as Head of Government within each of the fifty states and in the five permanently inhabited territories. Governors are thus accountable for implementing State legislation and supervising the functioning of the executive arm of the state. As state leaders, governors are advancing and pursuing new and updated policies and legislation using various instruments such as executive regulations, executive budgets, and legislative bills and vetoes. Governors carry out their management duties and leadership goals with the help and support of department and agency executives, many of whom have the authority to appoint. Most of the governors are also authorized to select state judges from a list of candidates provided by a nominating committee in most instances.

There is a lieutenant governor in all but five states (Arizona, Maine, New Hampshire, Oregon, and Wyoming). The Lieutenant Governor shall take over the position of the governor (in Massachusetts and Western Virginia, the powers and responsibilities but not the office) by vacating the preceding Governor’s prosecution, death, or resignation. In case the current governors are unable to perform their responsibilities and frequently function as presiding officers of the top chambers of the state legislatures, lieutenant governors are also formal governors of the state. However, they cannot engage in political discussions in such circumstances, and they have no voting when these chambers are not split evenly.

THE GOVERNOR’S TERM

In every state, community, and territory, except New Hampshire and Vermont, four years are gubernatorial terms with two years. All governors may replace themselves barring Virginia, but they may be restricted to a certain number of consecutive or total terms. Virginia has uniquely forbidden its Governors from sitting in succession, but previous Governors are eligible after a certain (now four) times of service as Governors again. Many others formerly had the ‘no succession’ provision (which was part of the original Constitution of Virginia in 1776), but they all removed the ban by 2000 except for Virginia (including Mississippi, which repealed it in 1986, and Kentucky, which repealed it in 1992).

When the position is vacant, the Lieutenant-Governor is the appointed officer who succeeds the governor in forty-nine states and territories. The other five states and the Commonwealth of Puerto Rico include Secretary of State and Senate leader, individuals selected to replace the Governor. 

IMPEACHMENT

All Jurisdictions other than Oregon are responsible for the impeachment of governors. As with the federal government, the prosecution procedure begins with the lower parliamentary group and the trial takes place in any state except Alaska, where the process is over, and in Nebraska, which has a unicameral legislature tasked with the whole prosecutorial process. In most instances, a majority of members is required, while conviction usually needs a two-thirds majority.

With respect to state legislatures, governors perform two main responsibilities. First, they may be allowed to convene extraordinary legislative sessions, assuming that the aim and the schedule for the sessions have been laid out in advance as in most instances. Governors also integrate and interact more aptly with state legislators in a closer situation [A.] approval of state budgets and appropriations; [B.] enactment of state legislation; [C.] confirmation of executive and judicial appointments; and [D.] legislative oversight of executive branch functions.

THE GOVERNOR’S POWERS OF APPROVAL:  STATE BUDGETS AND APPROPRIATIONS

Governors must complete and deliver yearly or biannual plans for legislative examination and approval. The Governors also have in some States, the Commonwealths and Territories a ‘reduction’ authority – most often called a ‘line-item – which may be used to remove the appropriations they disagree to. These instruments enable governors and their budgetary personnel to have a significant role in setting policies for the utilization of state resources.

Governors frequently use State of the State messages to describe their legislative positions and several develop particular legislative proposals for their sake. The State of the State Address is a discourse that the governors of each of the United States usually deliver once annually. The speech is usually given before both chambers of the State legislature in a joint meeting, with the exception of a unicameral body, the Nebraska Legislature. This speech is intended to fulfill a constitutional requirement that a Governor must report on the state or status of a U.S. state yearly or ‘from time to time’ under earlier constitutions.

 State departments and agencies may also seek legislation with the consent of the governor. Executive officials are frequently called upon to provide witness to legislative proposals and governors and other leaders of the executive branch are mobilized in support of, or against, particular legislative initiatives by government and interest organizations. Governors will utilize their position as authorities in foster the endorsement of legislative proposals and, via frequent meetings with lawmakers and legislative officials, together with department heads and staff, may attempt to influence legislation’s development.

VETO POWER

All fifty Governors of State have the authority to veto entire legislative initiatives. A measure will become law in a vast majority of countries unless it is vetoed by the governor within a certain number of days that varies across States. In smaller states, legislation will expire, unless the governor signs them officially, also within a certain number of days (pocket veto). 

The ‘line-item (this may be used to strike a general item out of a piece of legislation), ‘reduction’ (by which a governor might remove a budget item), and ‘amendatory’ are other kinds of Vetoes available to certain states’ governors (by which a governor can revise legislation). Legislatures may overturn vetoes, typically by voting for a supermajority.) Many gubernatorial appointments require legislative confirmation

LEGISLATIVE OVERSIGHT

The governors converse with their legislatures to guarantee that their aims, objectives, and achievements are appropriately introduced and favorably received all through oversight hearings and other legislative activities that deal with and facilitate the performance of legislative programs and services dictated by the executive branch.

EXECUTIVE BRANCH POSITIONS INDEPENDENTLY SELECTED

A significant number of States choose some executive branches independently. The Lieutenant Governor, Secretary of State, attorney general, and treasurer are the most notable of these posts. 

Lieutenant Governor’s post occurs in the vast majority of states, where the position most frequently comes through democratic state elections and the governor, but in a few instances, the function of lieutenant governor is given by state law to another position in the executive or legislative branches (e.g., secretary of state or leader of the senate). All the posts of the State Secretary, Attorney General, and treasurer are subject to national popular elections in the majority of states and, in most of the other states, at least one of the three is chosen.

State cabinets, which act as advisory councils of the governors of the country, consist usually of individuals chosen by the governor of the head of state departments and agencies, and in certain instances of senior employees in the direct office of the governor. In most states, the cabinet [A.] advises the governor on the development of policy, and [B.] serves as a vehicle for the governor or senior staff to convey priorities to gubernatorial appointees and address cross-agency issues or concerns.

Governors are expected to issue executive orders under State constitutions and laws and in jurisprudence or are subject to the authorities given to the heads of state. Governors use executive orders that may or may not fall under legislative review and would trigger emergency powers during natural disasters, energy crises, and other situations requiring immediate attention. They may also create an advisory, coordinating, study, or investigative committees or commissions; and address management and administrative issues such as regulatory reform, environmental impact, hiring freezes, discrimination, and intergovernmental coordination.

As Chief Executive, Governors must ensure that their state is prepared for all kinds and dimensions of crises and catastrophes. Over the course of the coronavirus’ trajectory on the united states, this power has become highly relevant. In the event of an emergency, the Governor also plays an important role in giving guidance and instruction and in keeping calm and public order.

State emergency management laws generally specify how the governor may declare a state of emergency and terminate it. In certain instances, the required catastrophe response is beyond the ability of central and local governments. The President may be asked by a State to proclaim a disaster statement. A significant disaster statement activates a number of government programs, depending on the extent of the catastrophe and the kind of damage.

For more information on serving legal papers, contact Undisputed Legal our Process Service department at (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers.

Sources

1. The vote limited the Pennsylvania governor’s disaster declaration to 21 days. Beyond that, legislative approval is required. Pennsylvanians also voted to empower state lawmakers to remove the governor’s disaster declarations with a majority vote.

2. Cassie Maas | U. Pittsburgh School of Law, US. ‘Kentucky Supreme Court Backs Laws Limiting Governor’s Emergency Powers.’ Jurist, – JURIST – News – Legal News & Commentary, 24 Aug. 2021, www.jurist.org/news/2021/08/kentucky-supreme-court-backs-laws-limiting-governors-emergency-powers/

3. The COVID-19 pandemic arose this year during the latter part of the regular session, after the deadline for introducing a new bill, the high court noted. But five amendments eventually passed, most notably a measure that acknowledged the governor’s declared emergency, it said ‘generally leaves our General Assembly without the ability to legislate quickly in the event of emergency unless the emergency arises during a regular legislative session.’

4. The Boone County Circuit Court in July 2020 issued an injunction citing ‘irreparable harm’ to businesses by the executive orders.

In its 103-page opinion, the Kentucky Supreme Court concluded that the governor properly invoked his emergency powers and that no violation of the separation of powers had occurred. The Court found that ‘because the law and equities favor the Governor … it was an abuse of discretion of the trial court to issue the temporary injunction.’ The court, in weighing the interests of the plaintiffs and the public health of Kentuckians as a whole, upheld Beshear’s orders.

5. 21 RS HB 1/VO5

AN ACT relating to reopening the economy in the Commonwealth of Kentucky in response to the state of emergency declared by the  Governor of  Kentucky beginning in March 2020 and continuing throughout the year of 2021 and declaring an emergency.

Be it enacted by the General Assembly of the Commonwealth of Kentucky…

6. Krauth, Olivia. ‘How Will the Kentucky Supreme Court Ruling on Gov. Beshear’s Authority IMPACT SCHOOLS?’ Journal, Louisville Courier-Journal, 22 Aug. 2021, www.courier-journal.com/story/news/education/2021/08/21/kentucky-supreme-court-how-beshear-ruling-could-impact-schools/8212331002/. 

7. ON TRANSFER FROM COURT OF APPEALSV.NO. 2021-CA-0328FRANKLIN CIRCUIT COURT NO. 2021-CI-00089

8. In a unanimous opinion issued Saturday, Kentucky’s top court didn’t weigh in on the constitutionality of the laws themselves. The Franklin Circuit Court may ultimately find them unconstitutional as the larger lawsuit continues.

9. The longest-serving governor of all time was Terry Branstad of Iowa, who was elected to his sixth (non-consecutive) term in 2014. Governor Branstad resigned on May 24, 2017, to become the United States Ambassador to China. He held the title of Governor of Iowa for 22 years. On December 14, 2015, he became the longest-serving governor in US history, breaking the record held by George Clinton of New York, who served 21 years from 1777 to 1795 and from 1801 to 1804.

10. Phillip O’Neill, ‘Virginia’s ‘No Succession’ Rule: Democratic Pillar or Constitutional Relic?, 23 Richmond Public Interest Law Review 1 

11. in two of which the president/speaker, Tennessee, and West Virginia is one and one

12. although the terminology for this speech differs for some states: in Iowa, the speech is called the Condition of the State Address; in Kentucky, Massachusetts, Pennsylvania, and Virginia it is called the State of the Commonwealth Address.

13. Snell, Ron. Gubernatorial Veto Authority with Respect to Major Budget Bill(s), www.ncsl.org/research/fiscal-policy/gubernatorial-veto-authority-with-respect-to-major.aspx. 

14. Governors are usually authorized to designate State comptrollers and heads of pre-and post-audit departments. The appointment authority of governors for heads of state education and higher education agencies is similarly restricted.

15. Greenberg, Pam. Legislative Oversight of Emergency Executive Powers, www.ncsl.org/research/about-state-legislatures/legislative-oversight-of-executive-orders.aspx. 

 

This entry was posted in Legal Material on by .

BLOG DISCLAIMER

The information contained herein has been prepared in compliance with Section 107 of the Copyright Act. Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works. The articles/Images contained herein serve as criticism, comment, news reporting, teaching, educational, and research-as examples of activities that qualify as fair use. Undisputed Legal Inc. is a Process Service Agency and “Not A Law Firm” therefore the articles/images contained herein are for educational purposes only, and not intended as legal advice.