Can Governors Use Emergency Powers to Prevent Government Response to an Emergency?: A Look at Executive Preemption of Local Law

Photo by Jesse Collins on Unsplash

Andrew Lance, Associate Member, University of Cincinnati Law Review

I. Introduction

Throughout the COVID-19 pandemic, governors have exercised significant authority through their state’s emergency statute. These statutes have questionable effectiveness because government leaders disagree on the severity of the emergency and, in some cases, whether one exists at all, leaving the different levels of government in conflict over the appropriate degree of response.

There is legal tension between (a) the extent to which the governor can use the emergency statute to fully control the emergency response through preempting local governments’ rules, and (b) local governments’ authority to respond with more restrictive measures to adequately provide for the safety of their communities as they see fit, thus creating confusion and uncertainty. This article will begin by briefly discussing the source of local government power and state emergency statutes, followed by a look at Georgia and Texas—two states that are at the forefront of this conflict. Finally, the article raises issues with favoring the Executive in this situation and offers a possible solution in the form of the anti-commandeering doctrine.

II. Background

Counties, municipalities, and other forms of local government are political subdivisions that directly derive their powers and authority from the state.[1] States grant broad autonomy often through the legal theory of Home Rule.[2] States under the Tenth Amendment have any power not reserved to the federal government.[3] The anti-commandeering principle is the application of the Tenth Amendment which prevents the federal government from conscripting state executive officers[4] and telling state legislatures how to act.[5] However, even though states are the source of local governments’ existence and generally exert control over policies simply by being higher in the government hierarchy,[6] local governments are granted certain powers and autonomy that can only be altered through the procedural rules of the state, typically the legislature.[7]

A. State Emergency Statutes

Similar to the federal National Emergencies Act,[8] states have emergency statutes that grant the governor power to coordinate an effective and efficient response to emergencies like natural disasters and public health crises.[9] The statutes simultaneously extend powers to the governor and might function as enabling statutes, confirming local governments’ emergency powers to create programs, organizations, ordinances, and otherwise assist in addressing the emergency in their jurisdictions.[10] Typically, after a governor declares a state of emergency, the governor can then take immediate action by issuing an executive order that has the force of law during the emergency declaration.[11]

B. Georgia Emergency Statute and Executive Orders

Georgia’s emergency statute grants emergency powers to both the governor and local governments.[12] Importantly, local rules cannot be inconsistent with the governor’s directives.[13] The legislative intent was to provide a mechanism for the effective confrontation of an emergency.[14] In doing so, the legislature granted local governments powers to promulgate measures that address the emergency and supplement the governor’s statewide plans.[15]

In 2021, Governor Kemp issued an executive order (the “August 19, 2021, Executive Order”) requiring organizations to implement measures mitigating COVID-19, including distinctively, business’s voluntary adherence to local COVID ordinances.[16] The August 19, 2021, Executive Order provides two different paraphrases of local government power as defined by the statute.[17] The definition of “inconsistent” in the order also considers any ordinance that is “more or less permissive” to be inconsistent with the Governor’s plan.[18] This definition is not supported by any language in the Georgia code,[19] is in direct conflict with the legislative intent that these sections to be construed liberally to effectuate their purpose,[20] and it possibly nullifies the provision granting lawmaking power to the local governments during emergencies.[21]

C. State v. El Paso County

Governor Kemp’s lawsuit against Atlanta regarding an earlier executive order may have resolved this question, but Governor Kemp dropped the suit.[22] Few state courts have addressed this executive order preemption even beyond the pandemic context; therefore, the Texas Eighth District Court of Appeal’s opinion in State v. El Paso County is instructive on this issue.[23]

The majority opinion held that because the governor is a “tie breaker,” the governor’s rules have the force of law over a political subdivision.[24] The court also rejected the argument that a local disaster permits local control, because the COVID-19 disaster was statewide.[25]

The dissent argued that the statute instructs the governor to make executive orders that have the force of law to address disasters, but it does not give authority to directly override local officials or suspend their power.[26] The dissent viewed Governor Abbott as using the statute in the opposite way—sweeping away the bureaucratic obstacles to institute his desired plan.[27] The Texas emergency statute does not explicitly state that executive orders preempt local contrary laws,[28] nor does the Texas Constitution permit executive orders to trump local laws.[29]

The majority in El Paso County follows a recent Texas Supreme Court case that said that a governor’s orders do not necessarily have to be motivated by a desire to alleviate the pandemic.[30] The Texas Supreme Court reasoned that the emergency statute does not suggest a limit on the governor’s authority to consider other policy goals such as economic recovery.[31]

III. Discussion

The majority opinions from Texas create several problems if applied broadly to other states. The blanketed statement that the governor has the tie breaker; therefore, their rules have the force of law, reduces the checks and balances of the various parts of government into broad preemption authorized by the emergency statute.[32] Further, the idea that the governor’s orders do not need to be motivated by alleviating the pandemic[33] dangerously validates an imbalance of power toward the executive by extending powers beyond the context of the emergency. Whether an order is incidental to the public health emergency or if the public health emergency is a cover for a policy goal, is a political question a court possibly will refuse to address.

The August 19, 2021, Executive Order entitled “Protecting Economic Recovery During the State of Emergency for Continued COVID-19 Economic Recovery”[34] crosses this line of overbroad power. The order followed the expiration of the pandemic state of emergency in July 2021,[35] and it appears to be an economic order that references the ongoing pandemic but limits the public health measures. The August 19, 2021, Executive Order mentions little in the way of substantive public health policy and reduces local government’s lawmaking authority to optional adherence—this practically prevents local authorities from acting if they know they cannot enforce their laws. A governor cannot adopt a minimalist substantive policy to preempt local governments from enacting more restrictive policies because it effectively removes the granted power by the legislature to act, bordering on possible impermissible lawmaking activity.[36]

If the public health concern is not bad enough to justify its own emergency, then the circumstances do not justify the governor continuing to exercise emergency powers. Further this means the local governments’ possible implementation of public health measures are part of the basis for the August 19, 2021, Executive Order. Ultimately, the justifications found in the Texas opinions when considered in light of the Georgia executive order would permit a governor to consider any situation that might affect the economy and declare a state of emergency to preempt local governments from taking those actions. If a governor can limit these measures during what is admittedly still an emergency—the time when local action would be the most permissible—how much action can the governor take during peacetime?

Governors need the power to address emergencies but must be prevented from unduly controlling the activity of local governments. In Murphy v. NCAA, the anti-commandeering doctrine means that “just as Congress lacks the power to order a state legislature not to enact a law authorizing sports gambling, it may not order a state legislature to refrain from enacting a law licensing sports gambling.”[37] Though state legislatures clearly have the power to control local governments in such a way, governors do not have such unilateral lawmaking power. Just as Congress could not prohibit states from legalizing sports gambling, governors should not be able to unilaterally preempt local laws. Especially when emergency statutes like Georgia’s explicitly grant powers to local governments and already protect the governor’s interest by limiting inconsistent local rules. This would help limit a governor’s actions to those steps reasonably necessary for emergency response, the source of those powers to begin with.

IV. Conclusion

The court in El Paso County likened the governor/local government relationship during the COVID-19 pandemic to that of hurricane evacuation preparedness; it makes no sense to have one authority saying to go one way and another saying to go another.[38] To further their metaphor, what if a governor declared a hurricane emergency, then used their granted powers to limit the local response but did not issue any binding directive other than citizens can make their own decisions? Emergency statutes should grant governors the power to address the emergency, but they should be heavily scrutinized when governors use them to do the opposite—take no substantive steps using state resources to mitigate the emergency while telling local governments that their measures may be unenforceable. The law is unclear on the contours of a state governor’s true authority, but if a public health response from local governments impacts the economy, the policy should be debated and investigated by a legislature rather than subject to the view of the governor. Whether or not a legislature utilizes a solution like the anti-commandeering doctrine, they will have to decide whether they value the economy and their own partisan political stances over the government’s ability to effectively address an emergency like COVID-19.

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[1] See Hunter v. Pittsburgh, 207 U.S. 161, 178-79 (1907).

[2] See generally Paul A. Diller, Reorienting Home Rule: Part 2–Remedying the Urban Disadvantage Through Federalism and Localism, 77 LA. L. Rev. 1045, 1049-51 (2017); David J. Barron, Reclaiming Home Rule, 116 Harvard L. Rev. 2255, 2278 (2003).

[3] U.S. Const. amend. X.

[4] Printz v. United States, 521 U.S. 898, 935 (1997).

[5] Murphy v. NCAA, 138 S. Ct. 1461, 1476 (2018).

[6] See Diller, supra note 2, at 1047.

[7] Id. at 1050.

[8] 50 USC §§ 1601 et seq (2021).

[9] See e.g., Ohio Rev. Code Ann. § 4935.03 (2021).

[10] See e.g., Ohio Rev. Code Ann. § 5502.26 (2021).

[11] See Kelley J. Deere, Governing by Emergency Executive Order During the COVID-19 Pandemic: Preliminary Observations Concerning the Proper Balance Between Executive Orders and More Formal Rule Making, 86 Mo. L. Rev. 5-8 (forthcoming 2021).

[12] O.C.G.A. § 38-3-28 (2021).

[13] Id.

[14] Id.

[15] Id.

[16] Georgia Governor, Executive Order, 2021 August 19B, Digital Library of Georgia, 4 (2021) http://dlg.galileo.usg.edu/do:dlg_ggpd_i-ga-bg600-b-ps1-be9-b2021-s8-h19b.

[17] Id. at 2, 5.

[18] Id. at 2.

[19] See O.C.G.A. § 38-3.

[20] Id. at § 38-3-6.

[21] See Id. at § 38-3-51.

[22] Vanessa Romo, Governor Drops Lawsuit Against Atlanta Mayor Over Masks, But Fight May Not Be Over, NPR (Aug. 13, 2020, 7:14 PM) https://www.npr.org/sections/coronavirus-live-updates/2020/08/13/902347003/governor-drops-lawsuit-against-atlanta-mayor-over-masks-but-fight-may-not-be-ove.

[23] State v. El Paso Cty., 618 S.W.3d 812 (Tex. App. 2020).

[24] Id. at 821-22.

[25] Id. at 822-23.

[26] Id. at 828.

[27] Id.

[28] Id. at 832-33.

[29] Id. at 833.

[30] Abbott v. Anti-Defamation League Austin, Sw., & Texoma Regions, 610 S.W.3d 911, 918 (Tex. 2020).

[31] Id; See also Tex. Gov’t Code § 418.016 (2021).

[32] El Paso Cty,. 618 S.W.3d at 821-22.

[33] Abbott, 610 S.W.3d at 918.

[34] Georgia Governor, supra note 16.

[35] Jeff Amy, Kemp to End Georgia Health Emergency but Keep Some Powers, AP News (June 22, 2021) https://apnews.com/article/ga-state-wire-georgia-coronavirus-pandemic-health-government-and-politics-a464a2622c7a7143760ad859c17c72a1.

[36] Though unconfirmed by Georgia courts, an argument supported during the pandemic by local law professors. See Anthony Michael Kreis (AnthonyMKreis), Twitter (July 15, 2020, 8:43 PM) (thread), https://twitter.com/anthonymkreis/status/1283562967544598533?s=21,

[37] Murphy v. NCAA, 138 S. Ct. 1461, 1481-82 (2018).

[38] State v. El Paso Cty., 618 S.W.3d 812, 822 (Tex. App. 2020).