In recent weeks, many citizens have written to me requesting that the Legislature take action to address the COVID-19 crisis. The reality is that the Legislature’s formal power to act in this crisis is limited; it is the governor who has broad authority during times of emergency. While legislators have oversight over some of the emergency orders issued so far, others, such as the Stay Home, Stay Healthy order, do not require any legislative input or approval. As we look to the future, the Legislature must have a much stronger role during emergencies.
As state legislators during this pandemic, we find ourselves in a new role: Approving or denying the governor’s requests to extend the suspension of specific state statutes and regulations beyond his authorized period of 30 days. While the Legislature is not in session, the leaders of the state’s four caucuses — Speaker of the House, majority leader of the Senate, and minority leaders of the House and Senate — make these decisions with input from their caucuses. To date, legislators have acted to extend most, but not all, of Gov. Jay Inslee’s requests to waive statutes and regulations beyond 30 days.
Unfortunately, this new approval process applies only to a subset of the emergency proclamations issued by the governor during the current pandemic crisis. Our governor has broad statutory powers to prohibit activities that he considers necessary “to help preserve and maintain life, health, property or the public peace” (RCW 43.06.220). Prohibitions on activity, like the Stay Home, Stay Healthy order, fall under this category, cutting the Legislature out.
The Legislature’s power to review the governor’s emergency requests to extend the suspension of state statutes after 30 days was included in Senate Bill 5260, which I sponsored in 2019 to revise an outdated law that has been in existence since 1969. This bill passed the Legislature on a bipartisan basis and was signed into law by Gov. Inslee. I believed then that the governor needs flexibility to suspend certain laws that might impede swift action in the event of a flood, fire, earthquake or other emergency. I also felt strongly that the Legislature should have a chance to weigh in if such suspensions continued past 30 days.
Legislators will always have a role as advocates for their constituents, but a more direct form of oversight is needed. Recent practical experience has shown that the Legislature should have a formal say in all of the governor’s emergency actions that extend beyond 30 days. Our Republican tradition recognizes the importance of checks and balances among the branches of government, and the Legislature is an essential forum in which the public can have a voice in decision-making.
Several states have a stronger role for the Legislature in their emergency-powers laws. In Georgia and Oklahoma, the Legislature must provide affirmative approval for any emergency declaration. In Colorado, Florida and Texas, the Legislature may cancel a state of emergency at any time. Washington state needs a more balanced and uniform process for addressing emergency situations.
When the Legislature is back in session, we should pass — and our governor should sign — legislation to expand and harmonize our existing legislative-review process by requiring the Legislature to approve or disapprove any emergency action by the governor extending beyond 30 days. Washingtonians deserve to have a voice at all times, including times of emergency.