Capitol Media Services
PHOENIX — Seven months into a gubernatorial-declared emergency, the state’s top Republican lawmakers are ordering a closer look at whether the powers they have given to the governor need to be curtailed.
The panel formed by Senate President Karen Fann, R-Prescott, and House Speaker Rusty Bowers, R-Mesa, is charged with trying to determine if Arizona has the proper balance between the need of the state’s chief executive to respond to unforeseen events and the role of the Legislature in providing oversight. Issues will range from what is needed to trigger a gubernatorial declaration of an emergency to exactly how long it can go on without needing some sort of legislative approval.
That last issue has become a sore point among some lawmakers who note that Gov. Doug Ducey declared an emergency due to the COVID-19 pandemic in March and it is still in effect, with no hint from the governor of when he is ready to declare it over.
All indications are that won’t happen soon.
Ducey continues to use those emergency powers to limit the operations of businesses with everything from occupancy limits and bans on evictions to prohibitions against dancing in bars. Cara Christ, the state’s health director, has said she expects that bars, now closed for normal operations under Ducey’s directives, will not be able to resume normal operations until sometime next year.
State and federal judges have so far rebuffed various legal challenges to Ducey’s authority, saying the existing laws give him wide latitude, even to override certain laws.
And Brett Johnson, a private attorney hired by Ducey — and paid for with taxpayer dollars — has told judges there is no reason for them to intercede because lawmakers remain free, with a majority vote, to cancel any emergency.
That, however, is not a realistic solution when the legislature is not in session, as currently is the case. It takes a petition with two thirds of both the House and Senate for lawmakers to call themselves in to even have the vote.
Fann told Capitol Media Services this isn’t about Ducey. She said the governors of all 50 states and the president all have had to deal with this unprecedented situation.
But she said the current situation isn’t what lawmakers had in mind when they granted governors broad powers.
“The assumption (was it) would be a Rodeo-Chedeski Fire,’’ the 2002 blaze that burned more than 468,000 acres in eastern Arizona, “or a 9-11 or something that would last a short duration,’’ Fann said. “Nobody foresaw that it would be something like this that could potentially for on for months.’’
Ducey appears cool to the whole idea of reviewing his powers, at least not while he’s still exercising them.
“These are unprecedented times, and there will be plenty of time for after-action reports once we’ve navigated through what’s in front of us,’’ said press aide Patrick Ptak. He said his boss is following the laws as they now exist.
But Sen. Michelle Ugenti-Rita, R-Scottsdale, who will co-chair the panel, told Capitol Media Services she already has some ideas of things that need change in the statutes.
One would be some sort of time limit on how long an emergency could last without getting the approval of state lawmakers for an extension. Ugenti-Rita said there could be some flexibility in how that is crafted. But she said the current situation is not acceptable.
“We’ve been in this now for seven months,’’ she said.
“So clearly, we have moved out of an emergency,’’ Ugenti-Rita continued. “Now we’re just in a state of crisis, I guess?’’
The result, she said, is that one branch of the government is running it.
There is precedent for such an approach.
The National Conference of State Legislatures says that in six states, the expanded executive power under an emergency has a built-in expiration date of between two and 60 days, depending on the state and the type of emergency.
“It makes sense that we have triggers in place and statutes in place to deal with unprecedented situations,’’ Ugenti-Rita said.
“But this has gone on for far too long, with no end in sight, minimal communication (from the governor) about what to expect,’’ she continued. “It’s completely gutted the Legislature and we need to bring back the balance of power.’’
Arizona actually has two separate sets of laws on emergencies.
The state Health Code provides broad authority for the Department of Health Services during a state of war or a gubernatorial-declared emergency “in which there is an occurrence of imminent threat of an illness or health condition caused by bioterrorism, an epidemic or pandemic disease, or a highly fatal infectious agent or biological toxin that poses a substantial risk of a significant number of human fatalities or incidents of permanent long-term disability.’’
Those powers include mandating treatment of vaccinations of those who have been exposed, quarantine of some individuals, mandating medical examinations for exposed persons and ration of medicine and vaccines.
The more sweeping powers are in a separate section of Arizona law. These give a governor who has declared a state of emergency “the right to exercise, within the area designated, all police power vested in the state.’’ In fact, the only statutory limit lawmakers have put on the governor in these situations is that she or he cannot impose new restrictions on the possession, transfer, sale, carrying, storage, display or use of firearms.
Ducey has cited that section of law in everything from a now-expired stay-at-home order to prohibiting residential evictions and telling businesses like restaurants, bars, gyms, fitness centers and water parks how they can operate.
Ugenti-Rita, who co-chairs the panel with Rep. Gail Griffin, R-Hereford, said she wants to begin hearings right away, “like yesterday.’’
The idea of the review is not unique to Arizona.
NCSL reports that lawmakers in at least 23 states have introduced bills or resolutions that would limit the power of the governor or the authority to spend money without legislative approval.
For example, one option is to require that a governor at least give notice to lawmakers when suspending enforcement of certain statutes. Another is to tell lawmakers how money is being spent.
And then there’s the question of whether a gubernatorial-declared emergency can continue as long as the governor wants, as is the case in Arizona.
That fact was underlined in a recent court filing by Attorney General Mark Brnovich who said there are “no set criteria’’ for ending the emergency, with the result that “the governor has claimed for himself the indefinite power to act legislatively.’’