By David Ferguson
Senator Kim Hammer and Representative Jimmy Gazaway are working on legislation to give the legislature some control over the exercise of emergency powers by Governor Asa Hutchinson. When the governor declared an emergency due to Covid-19 his proclamation triggered emergency powers under the Emergency Services Act of 1973[i]. During the emergency, he has suspended laws and made up new ones to suit himself without the legislature. Some have compared this to dictatorial powers.
The Hammer-Gazaway bill would give the legislature a role over the exercise of the Governor’s emergency powers. The bill would trigger a legislative review of the proclamation to affirm or reject the emergency. The current version of their legislation would allow the legislature to approve or disapprove by passing identical resolutions in the House of Representatives and Senate.
The legislature already has the power to terminate an emergency but to do so requires a concurrent resolution passed by each chamber. But, a concurrent resolution is subject to the veto of the Governor and that worries some legislators.
The Hammer-Gazaway bill tries to avoid the possibility of a veto by letting the legislature terminate the emergency by passing separate House and Senate resolutions which are not subject to veto.
Representative Gazaway researched emergency laws in other states and found that in a number of states their legislatures have a role from the beginning.
Some legislators think making it easier to terminate an emergency declaration would force the Governor to cooperate with the legislature, giving the legislature input on his exercise of emergency powers. Some legislators also think Governor Hutchinson’s Covid-19 emergency declaration has been extended too many times and needs to be ended. Either way, their goal is to get more of a say on the restrictions imposed on the people.
Senator Hammer and Representative Gazaway presented their draft bill last week in the House & Senate Health Services Subcommittee. Their goal was to get comments from colleagues to help them refine their bill. Barring the unlikely event that the Governor calls a special session before the end of the year, the Hammer-Gazaway bill will be considered during the next regular session of the legislature scheduled to begin in mid-January.
In July, Representative Dan Sullivan, joined by other legislators, complained that the Department of Health is issuing broad orders without complying with the emergency procedures for rule making under the Administrative Procedure Act. The Hammer-Gazaway bill includes provisions to address this problem during a declared emergency.
The last several months of emergency orders by the governor have exposed problems with the 1973 law and several issues are likely to be addressed in the legislative session beginning in January.
Meanwhile there have been some rumors about possible lawsuits against the Governor’s emergency orders.
In a June article CONDUIT raised two legal issues that could be the basis for a challenge.. First, the likelihood that the Governor’s claim of broad powers is based on a liberal misreading of the Emergency Services Act. Second, whether the Emergency Services Act is so broad as to be an unconstitutional delegation of legislative authority and a violation of separation of powers under the Arkansas Constitution.
Here is a link to the Hammer-Gazaway bill and a link to the meeting video where the bill was discussed. The discussion begins at the 2:20 PM mark.
Whether you like or dislike the Governor’s orders under the Covid-19 pandemic, Arkansas should not have a law triggering near dictatorial powers to a governor.
[i] A.C.A. § 12-75-101 et seq
