Lawmakers pass measures to curb executive emergency power

State legislators voted Thursday on multiple fronts to curb the power of the governor — this one and future ones — to declare and maintain an emergency.

With no discussion at all, the Senate gave preliminary approval to SCR 1001. If it gets final approval by the Senate and later by the House, it would immediately terminate the emergency that Gov. Doug Ducey declared nearly a year ago.

The resolution, crafted by Sen. Michelle Ugenti-Rita, R-Scottsdale, states that the governor’s March 11 emergency order has interfered with individual rights. That specifically refers to the stay-at-home edicts he issued early in the Covid pandemic.

While those have been allowed to expire, Ugenti-Rita said other Ducey actions remain, including restrictions on how some businesses can operate. which she said have wreaked havoc on the economy.

Ducey could terminate the emergency on his own. But he has repeatedly insisted the need for him to assume the special powers remains.

This measure, which now needs a final roll-call vote in the Senate before going to the House, bypasses using. a constitutional provision which allows the legislature, by a simple majority, to declare the emergency over.

But Ducey could have the last word: A recent opinion by Attorney General Mark Brnovich said that, under the current constitutional provisions, the governor remains free to issue a new emergency order.

That, in turn, goes to the separate actions designed to keep that from happening — at least in the future.

HCR 2037, approved by the House on a 31-28 party-line vote, would allow a simple majority of state lawmakers to call themselves into special session to consider and review any gubernatorial emergency. It now takes a two-thirds margin to do that.

Separately, the Senate gave preliminary approval to SCR 1010. It actually would require the governor to call a special session any time he or she declares an emergency.

In both cases, that would give lawmakers the power to review what the governor has done, the restrictions imposed, and decide for themselves whether they are appropriate.

Nothing in either measure would affect the current emergency order. That’s because it requires a constitutional change, something that requires voter approval. And that can’t happen until November 2022.

But Rep. John Kavanagh, R-Fountain Hills, who crafted the House version, said that there is a need to revisit the decades-old laws for the next time a governor declares an emergency.

“What we have now is absurd,” he told colleagues.

“What we have now are emergency procedures that were created for floods and hurricanes and fires, local short-lived emergencies, not pandemics,” Kavanagh said, with the governor given broad — and pretty much unquestionable — powers to act. “Pandemics are statewide and they’re long-lasting and the current procedures don’t work.”

Sen. Kelly Townsend, R-Mesa, author of the Senate measure said it’s a simple matter of the constitutional right of a republican form of government.

“And that’s not what we had this last year,” she said.

“We had one person and his advisers making decisions on behalf of the entire state,” Townsend said. “And I would challenge anyone to say that the state and the people in the state were satisfied with those decisions.”

Kavanagh said his measure is not a total power grab.

He said if whoever is governor doesn’t like the changes the legislature has made, he or she has the right to “protest,” essentially a form of a veto. And it would take a vote of 60% of lawmakers to override.

The whole concept of legislators second-guessing the governor bothered Rep. Randall Friese, D-Tucson.

“In a pandemic, very specifically, when decisions need to be made expeditiously to address rapid spread, I think one person with the advice of experts, and the guidance of their agencies like the Department of Health Services, making those decisions is less problematic than 90 people,” he said. And he asked if that wouldn’t slow the process down to the point of being ineffective.

Kavanagh and Townsend both said nothing in the measure would stop the governor from declaring an emergency and issuing immediate orders. What it does is ensure the legislature is in session and has a voice.

“And that’s when we deliberate, maybe we negotiate, we do a lot of things,” Kavanagh said. “And then we make a decision as to whether or not the governor acted wisely.”

Friese said he agrees, in essence, with the idea of giving the legislature a voice in future emergencies.

“We should have, as a legislature, some sort of automatic approval or something,” he said. And Friese said there should be some simple procedure for lawmakers, at some point, to review the declaration.

But he said that future emergencies could require rapid — and unilateral — action.

“One thing we know for sure is these viruses will evolve, these viruses will become more and more difficult to manage,” Friese said. And if there isn’t quick action, he said the impact on Arizona could be even more pronounced than it has been.

“We will have businesses close for much longer, we will have hospitals at capacity,” Friese said.

“We will have much more people sick and dying,” he continued. “And if we put too many triggers and make it too easy to undermine the plan of the executive, on the advice of many, many specialists and scientists and those people who are trained to respond to these things … we could be causing ourselves a lot of grief.”