In response to the coronavirus pandemic, governors and state agencies in all 50 states relied on emergency power authority to enact stay-at-home orders, mask mandates, and other restrictions on businesses and individuals. Since March 2020, 10 bills in eight states have been signed into law that are aimed at increasing legislative oversight of governors’ emergency powers. These laws were enacted in Arkansas, Colorado, Kansas, Kentucky, New York, Ohio, Pennsylvania and Utah.
Additionally, voters in Pennsylvania will have a chance on May 18, 2021, to approve a measure the Pennsylvania State Legislature certified for the ballot that would limit the governor’s emergency powers.
Laws limiting the governor’s emergency powers have been enacted in five states where one party controls the governorship and both branches of the state legislature – Arkansas (Republican trifecta), Colorado (Democratic trifecta), New York (Democratic trifecta), Ohio (Republican trifecta), and Utah (Republican trifecta). Laws limiting the governor’s authority have been enacted in three states with divided governments. In Kansas, Kentucky, and Pennsylvania, the governorship is controlled by a Democrat, while Republicans hold majorities in the state legislature’s chambers.
The laws generally allow legislators to terminate emergency declarations and orders or restrict a governor’s authority to regulate city and county-level public health decisions.
• In Kansas, Gov. Laura Kelly (D) signed Senate Bill 50 into law on March 24, 2021. Under the law, anyone burdened by an executive order, school board policy, or county health directive can file a lawsuit, and courts must respond to the lawsuit within 72 hours to determine if the order or policy is narrowly tailored to the emergency. The law also expanded the Legislative Coordinating Council from seven to eight members and empowered it to override gubernatorial executive orders. On Thursday, April 1, the Legislative Coordinating Council voted 5-2 (with one absence) to end Kelly’s statewide mask mandate.
• In Ohio, Republican majorities in the General Assembly voted on March 24 to override Gov. Mike DeWine’s (R) veto of Senate Bill 22, which placed a 90-day limit on states of emergency and authorized lawmakers to pass resolutions to terminate a state of emergency after 30 days.
• In Kentucky, Republican majorities in the General Assembly voted to override Gov. Andy Beshear’s (D) vetoes of Senate Bill 1 and Senate Bill 2. The bills limit the governor’s emergency orders to 30 days unless extended by the legislature and grant legislative committees more oversight of the governor’s emergency administrative regulations. However, Franklin Circuit Court Judge Phillip Shepherd temporarily blocked parts of both bills from taking effect on March 3, after Beshear filed a lawsuit arguing the bills would undermine public health measures meant to protect people in Kentucky from the coronavirus pandemic. Those injunctions remain in effect.
As of April 2020, legislatures in 33 states can vote to terminate a governor’s emergency declarations. Legislatures in Alaska, Kansas, Michigan and Minnesota are required to vote on extending or terminating a governor’s emergency declarations.