Governing in a pandemic means making space for state legislatures

Protesters gathered outside the state Capitol in Lansing, Mich., on May 14 to voice their displeasure with a stay-at-home order handed down by Democratic Gov. Gretchen Whitmer. (Paul Sancya/AP)

SINCE MARCH, governors throughout the country have summoned emergency powers to impose extraordinary restrictions on citizens’ movements to slow the spread of the novel coronavirus. Now, as the human and economic costs of lockdown mount, states are beginning to relax those restrictions, though the threat from the virus remains. Governors will still need emergency authority as they navigate the treacherous trade-offs of reopening. But in this next phase, with more time to prepare for a second wave of infections and fewer unknowns about the virus’s spread than in March, effective governing calls for seeking as much democratic legitimacy as possible.

In many states, lawmakers and judges already are pushing to restrict the use of executive emergency power. Some high-profile clashes followed familiar partisan divides, with GOP lawmakers accusing Democratic governors of overstepping their authority, as in Wisconsin and Michigan. But not all clashes followed this script. In Mississippi, where Republicans hold both the governorship and legislature, the legislature voted unanimously to strip Gov. Tate Reeves of sole spending authority over the state’s $1.25 billion in federal coronavirus stimulus funds. (The legislature and governor later agreed to share control.) In New Hampshire, lawmakers from the Democratic-dominated legislature sued the state’s Republican governor for more control over stimulus funding. A judge dismissed the case, saying it would be “contrary to the public interest” for the relief funds to be delayed in the middle of a global pandemic.

Invoking emergency powers allowed governors to act quickly, which was key in preventing an explosion of infections from overwhelming hospitals in the early days of the pandemic. But governors leaning on emergency authority are likely to face increasing resistance as lawmakers adjust to the reality that life may not return to normal unless and until a vaccine arrives — which will be months away, at best. Already, 21 states have introduced or passed bills that would check governors’ authorities in some way, from giving legislatures the power to set the length of a state of emergency to restricting the governor’s reach in specific areas, such as religious gatherings.

Partisan politics and inter-branch power grabs are surely fueling some of these legislative impulses. Nevertheless, legislatures should play a major role in the next phase of pandemic governance, even as doing so requires them to convene special sessions and find socially distant ways to deliberate. Reopening poses increasingly tough calls about which reasonable people will disagree, with major implications for civil liberties, public health, and social and economic well-being. While there will be more moments of emergency in which governors will need to flex temporary authorities, they should not unduly circumvent legislative bodies while navigating these difficult choices.

To their long list of pandemic priorities, governors must now add: learning to lead in times of emergency while maintaining as much democratic legitimacy as possible.

Read more:

Leana S. Wen: 100,000 deaths later, there are no more excuses. We know what we need to do.

Daniel T. Halperin: The case for reopening schools this fall

Art Cullen: A plague of errors has put our entire Iowa county at risk

The Post’s View: Imagine weathering this without Internet. Many are — and Congress should help.