Emergency powers, in the account given across several episodes of The Bob Zadek Show, are authorities that state legislatures grant to chief executives so that government can act quickly when a legislature cannot conveniently assemble. The guests treat these powers as bounded and temporary by design, and describe their pandemic-era use as a departure from that design.
The structure and origin of emergency authority
Glenn Roper, speaking of the federal government, said that every state has the same kind of separation of powers, with legislative, executive and judiciary branches, and that the founders, having just come out of the war against England as they formed the Constitution, were not unfamiliar with emergencies. Because of that, Roper said, there is no general emergency exception to everything in the state and federal constitutions; instead state legislatures enact laws giving some measure of emergency powers to the executive, laying out what the governor or other officials are allowed to do and the restrictions and limitations on it. The problems, he said, arise when the limits are not respected, which produces erosion of the separation of powers and the checks and balances The Mini-Administrative State (2020).
Daniel Dew, described as Director of Legal Policy at the Pacific Legal Foundation, gave the historical account: going back to when states were formed and state constitutions happened, the states were very skeptical of a powerful governor, because before the Revolutionary War a lot of the abuses the people in the colonies suffered were at the hands of governors from England. Most power was therefore spread out amongst people in the form of legislatures. When an emergency happens — usually some sort of natural disaster — and there was no technology to gather over the internet or over Zoom, state legislatures started coming up with Emergency Powers Acts granting governors extra authorities so they could deal with things swiftly. Some were written more judiciously than others; some put time limits, some did not. Dew named California and Arizona as states whose provisions are incredibly broad, saying the governor has the police power of the state when an emergency is declared Emperor Newsom’s New Clothes (2021).
Bob Zadek framed the grant as practical rather than intellectual: the ceding of power under emergency conditions was not done because the governor was smarter than the collective wisdom of the legislature, but for purely practical reasons — somebody has got to be in charge, like a night watchman who is only there till the daytime. On who decides an emergency exists, Dew answered that in almost every case the governor unilaterally declares it by official proclamation, though in some instances the legislature can undo it by joint resolution Emperor Newsom’s New Clothes (2021).
The pandemic record
Zadek put the question to Roper as one of how power came to reside in the executive branch for such a long period and with such strong powers. Roper’s answer located the difficulty not in the existence of emergency statutes but in limits not being respected The Mini-Administrative State (2020).
Dew said that over the past nine months all that had been heard was directives and edicts from chief executives and precious little from the legislature, and that the executive’s purpose is to carry out the laws — he is the manager Emperor Newsom’s New Clothes (2021). In a separate episode, Zadek described the emergency powers assumed by the overwhelming majority of governors, mayors and county executives as the mechanism by which a recommendation gets converted to a mandate, and asked whether giving more decision-making to individuals and physicians would have produced a profoundly worse overall result Vaccines & the Totalitarian Principle (2021).
Senator Rand Paul said that virtually everything that happened during the lockdown, virtually every enforcement of the lockdown, either federal or state-based, was an abuse of emergency powers, and that emergency powers are essentially extra-constitutional because the Constitution says legislatures, both state and federal, pass law, not executives, who administer the laws. He called it a usurpation of power, and dated the growth of emergency authority to the Great Depression and after, citing a 1930s grant of power to the president to shut down all communications in the country — what some people have called the internet kill switch. Of his own governor he said that he forbade the attendance of church, gyms, hotels, restaurants, travel without papers and travel without vaccines, and that every one of his edicts was ultimately struck down by the court Senator Rand Paul Exposes the Great COVID Coverup (2023).
Reform proposals
Dew described the Pacific Legal Foundation’s model policy: emergency orders should last no more than 30 days without being approved by the state legislature; legislatures should be allowed to meet virtually; orders should be subject to strict scrutiny; and judicial review should be expedited, because businesses close quickly and people are discriminated against. The mechanism would take the existing emergency powers in any state and place safeguards on them so that the legislature and courts are restored to their proper function Emperor Newsom’s New Clothes (2021).
Dew reported that in about half the states legislation had been introduced to limit governors’ emergency powers, and identified the presentment clause as the obstacle: almost every governor, regardless of party, does not want to give up that additional power, so these things are likely to be vetoed. Michigan passed one that was vetoed by the governor, and he did not believe they had the supermajority required to overturn the veto. Kentucky’s legislature passed emergency powers reforms overwhelmingly and it was vetoed, with an override expected early to the middle of the next month Emperor Newsom’s New Clothes (2021).
Paul described the remedy actually adopted in his state: the legislature said that emergency edicts by the governor expire within 30 days unless approved by the legislature. He said he would have made it even shorter, probably three days, and warned that with the powers already on the books a president lacking any sense of self-awareness or restraint could rule the United States by edict Senator Rand Paul Exposes the Great COVID Coverup (2023).
Zadek compared the state-by-state reaction to the aftermath of the Kelo decision, in which, as he described it, the Supreme Court allowed Connecticut to use eminent domain to take private property from one group of landowners to give to another private property group, and roughly 45 states then enacted legislation reining in their own power of eminent domain. Dew responded that he hoped that was true and thought there was a stirring, but returned to the veto problem, arguing that structural safeguards should be put in place because you never know who your next governor is going to be Emperor Newsom’s New Clothes (2021).
Broader proposals to curb executive power
Terry Moe, asked for examples of excessive presidential power that ought to be scaled back, listed cutting back dramatically on the number of political appointees — presidents make about 4,000, many of them loyalists without expertise who politicize the bureaucracy — insulating the Department of Justice and the intelligence agencies from total control by presidents, eliminating the pardon power by constitutional amendment, legislation mitigating conflicts of interest, and legislation placing serious restrictions on presidents’ ability to use national emergency powers, which he called the heart of excesses in the use of unilateral presidential power Populism After Trump (2021).
Across episodes: the same argument, extended
The question is argued in more than one episode, and what changes is the level of government and the concreteness of the remedy. Roper, in July 2020, described emergency statutes as bounded by design and located the problem in limits not being respected; Dew, in January 2021, supplied the statutory history, the unilateral declaration mechanism, the model policy and the veto fights; Paul, in November 2023, called the whole apparatus extra-constitutional and reported a 30-day expiration rule actually enacted in his state. Moe, in January 2021, carried the same logic from governors to the presidency, targeting national emergency powers among other unilateral tools. The excerpts also show a shift in emphasis from diagnosis to legislative correction, with Zadek supplying the Kelo analogy in the Dew episode and Paul supplying the enacted statute in the later one. A separate episode, an interview with California State Assemblyman Kevin Kiley about the recall of Governor Gavin Newsom, is listed as touching emergency powers, executive overreach and the non-delegation doctrine, but the excerpt contains no statements by its speakers on the subject.
What the sources do not cover
The excerpts do not state the text of any emergency statute, the name of any bill, or the holding of any case beyond the description of Kelo given by Zadek and the statement that courts struck down one governor’s edicts. They do not identify the state whose legislature Paul describes, nor the states in which legislation was introduced, beyond Michigan and Kentucky. No excerpt states the outcome of the Kentucky override vote, the fate of the model policy, or any court’s reasoning on strict scrutiny or the non-delegation doctrine.