Is AR Legislature Powerless on COVID-19 Rules?
By David Ferguson
Some Arkansas legislators are upset with Governor Asa Hutchinson’s COVID-19 emergency rules and are upset with being left out of the decision-making process.
Legislators have been saying in frustration: “We are powerless to stop the Governor.” But these legislators have been misinformed.
The legislature is not powerless. The legislature can end the Governor’s emergency power by terminating his declaration of an emergency. And, if they wish, they can use this power as a way to bring the Governor to the table or force the calling of a special session.
The legislature has the power. It is just a question of whether it is politically expedient to use it. The legislature’s authority is found in Arkansas Code § 12-75-107 (c).
(1) The General Assembly by concurrent resolution may terminate a state of disaster emergency at any time.
(2) Thereupon, the Governor shall issue an executive order or proclamation ending the state of disaster emergency.
The legislature does not need the Governor’s approval to meet for the purpose of passing the resolution and it only takes a majority vote to pass it. Yes, the Governor could veto the resolution, but the legislature can override the veto by a majority vote. Overriding a veto is not a hurdle considering a majority is the same number required to pass the resolution in the first place.
Although the legislature has the power, I would be surprised if many legislators would be willing to just terminate the emergency immediately and go without any rules. But the legislature can use its power as leverage to get the governor to call a special session where they can make changes in the Emergency Services Act.
It is a game of chicken, but it can be played where the legislature has the advantage.
To obtain the advantage, the legislature would need to put the Governor in the position of being the one to let the emergency declaration die if he refuses to make concessions.
To do this the concurrent resolution would need to include the following three elements.
(1) A statement of grievances and deficiencies in the current emergency services law,
(2) A statement that a special session is necessary to revise those emergency powers, and
(3) Provision for a delay in the termination to allow time for a special session to occur first, but short enough to keep the governor from dragging his feet.
The resolution might say something like:
“The emergency declaration is terminated effective ten (10) days after the passage of this resolution unless the General Assembly has been brought into special session by that date for the purpose of allowing the General Assembly to amend any and all provisions of the Arkansas Emergency Services Act. If the General Assembly is in special session on that date then the emergency declaration is terminated three (3) days after the end of the special session and a new declaration is necessary.”
Yes, the governor could ignore the resolution and just pass a new emergency declaration, forcing the legislature to pass yet another concurrent resolution. The game could go on and on like that but it would be a really bad move for the Governor to alienate a majority of the legislature since the Governor still needs their support in the 2021 regular session of the legislature.
If you have made your way through this long explanation, you may be thinking: “I hate the Governor’s COVID rules and my legislator will fix it.” Not so fast. Many legislators are loathe to buck a governor either because of their party loyalty or fear of reprisal.
The legislature has power, but the political question remains: Is this a fight the legislature wants to fight in order to have a role in this emergency?
A personal note: In writing this article I am not advocating for or against any course of action. The article came about because it still bugs me when I hear someone say the legislature cannot do something when I know they have the power. Informing legislators about their powers and about their options is an old habit of mine that is hard to break. I worked for the legislature for over thirty years.
Although I always found something I liked about the governors I worked with, as a legislative employee I always enjoyed helping legislators who were butting heads with those governors. Even in retirement, I am a fan of the Arkansas legislative branch and probably always will be (even though they pass too many left-leaning policies for my taste).