Unilateral Executives During COVID-19: A Threat to Republicanism
The Michigan Hall of Justice, where the Michigan Supreme Court resides. The Court recently decided against Governor Gretchen Whitmer’s emergency declarations, returning the state’s coronavirus response to the authority of the legislature. Photo by Justin Rumao.
During the COVID-19 pandemic, state governors have taken up the responsibility to balance the competing interests of public health, the economy, and civic life. In order to legitimate their decisions, these governors have tended to act alone with a quasi-legislative power to dictate sweeping executive orders and then enforce their own will. These powers are the result of myriad state laws that heighten the governor’s authority to act through executive orders during times of emergency. Proponents argue that during this time of crisis, these orders are more efficient than standard legislation and have likely saved lives as a result. Indeed, this pandemic has caused the deaths of over one million people and requires expedient action to counteract. What remains disconcerting, however, is the precedential danger that these executive orders pose as a major deviation from the Republican system.
In the American Republic, legislative bodies in both the state and the federal governments propose laws and, through the compromise of a democratic system, select which laws will govern. Executive officers—governors, appointed and elected bureaucrats, and the president—then have the power to enforce those democratically selected laws. Chief executives also retain the ability to veto laws that do not appear to be prudent, moral, or beneficial. This system is a delicate balance between two powerful institutions, and it is only part of a far more intricate system of checks and balances.
Yet the COVID-19 pandemic has altered this necessary balance: Instead of legislative deliberation as the impetus for law, governors act with unchecked executive supremacy, which, even during a crisis, threatens the pillars of the American Republic. First, this dominance threatens representative democracy by subverting legislative bodies and redirecting their power to the executive. Such expansive executive authority lacks the legitimacy of a majoritarian democratic process that is directly accountable to the people. Second, as a result of this redirection of power, emergency executive authority threatens the separation of powers, the guiding principle that creates competing institutions in order to protect the people from tyranny. Without clear boundaries checking the powers of government branches, there is greater danger of an authoritarian executive. Last, executive actions can threaten civil liberties, which protect minority rights from majoritarian and authoritarian control. Executives can act without minority deliberation and direct accountability to the people, even in an attempt to achieve legitimate outcomes. But when executives prioritizes those outcomes without regard for the civil liberties that protect minority rights, minority beliefs lose their access to legitimate expression. In response to these threats against such pillars of Republicanism, legal battles have erupted in various states over emergency executive authority and actions.
Michigan Governor Gretchen Whitmer at a Naturalization Ceremony in 2019. Whitmer’s decisive executive actions on the coronavirus have drawn the ire of critics, including the Michigan legislature. Photo by Julia Pickett.
Michigan and Wisconsin: Executive Authority on Trial
Currently, numerous state laws permit the superiority of the executive to the legislative assemblies in times of emergency, such as during the COVID-19 pandemic. For example, a 1945 law in the Michigan Code of Laws grants the governor the power to issue any executive order during a time of crisis that he or she deems “necessary to protect life and property or to bring the emergency situation within the affected area under control.” In return, the legislature has no censure over these orders, which can extend far beyond the typical exertion of executive power. This law seemingly gives Michigan’s governor a way to create the equivalent of laws by controlling state law enforcement and agencies. Some state laws, such as in New York, give the legislature a form of censure over the governor's actions. Yet the Michigan legislature has no such intermediating power, except through the budget.
A separate 1976 Michigan law does subordinate executive actions to the legislature by a temporal approval process, whereby the governor must have the legislature approve extensions to an original 28-day term of executive power. But this law only concerns the procurement and distribution of emergency resources. Moreover, Michigan Governor Gretchen Whitmer bypassed this requirement in April in order to maintain her stay-at-home orders and used the censure-less 1945 law to sidestep the only explicit check on her emergency authority.
The Michigan legislature responded by suing Whitmer in state court. Court of Claims Judge Cynthia Stevens ruled in May that Whitmer had overstepped her authority under the 1976 law, but maintained that other orders based in the 1945 law were within her powers. Even after the legislature appealed, arguing that the 1945 law violated the Michigan Constitution, the Court of Appeals concurred with the Court of Claims on August 21st in a 2-1 ruling. The majority said that the 1945 law was within the delegation of powers of the Michigan Constitution. However, the Michigan Supreme Court overturned the lower courts’ decisions on October 3rd, ruling that the 1945 law was an unconstitutional delegation of powers. Therefore, Whitmer had no authority to extend her emergency authority beyond April.
This legal battle demonstrates the threat of a dominant executive authority undermining legislative power in Michigan. If the courts upheld the 1945 law, Whitmer would maintain unchecked power. The question that the Supreme Court decided, whether that law violated the delegation of powers in the Michigan Constitution, is critical to our understanding of Republican government. Under that law, Whitmer’s actions—such as her restrictions on restaurants, gyms, sports gatherings, and, at one point, travel—had cut off representative democracy and assumed powers typically separated from her executive office.
Wisconsin faced a similar legal challenge to executive actions from its legislature in May, and in that case the Wisconsin Supreme Court struck down the order in question. However, the legal battle did not center on Governor Tony Evers’ authority to declare an emergency or even his actions, but on a more technical aspect of an order issued by Secretary-designee of the Wisconsin Department of Health Services (D.H.S.) Andrea Palm.
Under Wisconsin law, the D.H.S. issues orders and implements emergency measures in order to combat communicable diseases like COVID-19. During an emergency, Wisconsin law also allows an agency to temporarily bypass notice, hearing, and publication requirements when promulgating a rule that preserves the public peace, health, safety, or welfare. However, when an agency does so, it must go to the legislature for extensions to that rule. On April 24th, Palm did not follow this requirement when she extended and upgraded the “Safer at Home” order initially promulgated on March 24th. The “Safer at Home” order required all Wisconsin residents to stay at home unless acting for specific “essential” reasons, or in other special circumstances, as defined by the order.
The legislature sued, and the resulting case hinged on whether the “Safer at Home” order qualified as a “rule” as defined in the Winsconsin statute. The Wisconsin Supreme Court held that the order did qualify as a rule according to the law and subsequently issued an injunction against the order, effectively lifting all restrictions on businesses. The legislature had asked the Court for a temporary stay on that injunction in order to work with the executive branch to ensure a smooth transition, but the Court refused and lifted the orders immediately. While the stay could have allowed the government to negotiate a softer lifting of orders, it is also important to note that courts of law base decisions on law, not on the consequences of their decisions.
The technical, procedural question was most likely the reason why this strong stance against executive authority happened earlier in Wisconsin than in Michigan. There were few procedural requirements for Whitmer’s executive orders, but there were several for Palm’s. The result was that in Michigan, Whitmer continued to exert unchecked power until now, whereas Evers and Palm have had to seek input from the legislature since May whenever they attempt to create orders. While in Wisconsin the executive still holds the rule-making power, there is an integrated, balanced approach that allows for both expediency from the executive and an ultimate check on executive power from the legislature.
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California: The Test of Civil Liberties
In California, the legal battle has played out in federal courts. On May 29th, the United States Supreme Court refused an application for injunctive relief from California concerning the free exercise of religion. The applicants, namely South Bay United Pentecostal Church, sued for an injunction against California Governor Gavin Newsom’s order that limited places of worship to 25% occupancy or 100 attendants, with the lower number taking precedence. The majority of the Court held that, because similar or stricter limits existed for comparable secular gatherings—such as movie showings, lectures, and concerts—churches, as a similar gathering of people for entertainment, did not have a right to more lenient restrictions. But the minority argued that since similar or stricter limits did not exist for comparable secular buildings—such as restaurants, stores, and offices—churches, as buildings that play a critical civic function, were unfairly discriminated against.
The Supreme Court, by refusing the application, held that the 25% limit was not discriminatory for or against religion. In taking this stance, the Court considered religious houses of worship more as social gatherings than as buildings that host important civic functions. Moreover, the Court has ceded the authority to Newsom to specifically limit religious activities. Regardless of whether the orders discriminate for or against religion, their effect is an inherent, targeted limitation on the free exercise of religion, even if it serves a legitimate government interest. The civil liberty to freely exercise religion does not depend on discrimination, as the Supreme Court interprets the First Amendment. Rather, it sets a substantive proscription on the government’s ability to regulate legitimate religious exercise. In this case, even though Newsom’s order legitimately protected public health, it did so by illegitimately regulating religious exercise, and thus restricting civil liberties.
The Effects on Republicanism
The examples of Michigan, Wisconsin, and California highlight three important values of the American Republic that face a threat from executive emergency action. The first of these values is representative democracy. In a system of government where the people are sovereign, the creation of the laws, which establish moral codes and answer moral questions, must derive from the people.
Even when the people elect the chief executive alongside the legislature, the system must follow a democractic principle in order to ensure true majoritarian support for moral issues. The people elect a chief executive in an aggregation of interests, but representatives must follow more localized agendas. In other words, a legislature composed of representatives who are elected by and respond to subsets of a population will better follow the will of the majority than an executive elected by and responding to broad coalitions.
Moreover, especially given the intense disagreements over the proper response to COVID-19, it is a moral question how the government responds to such disasters. In a Republic, moral questions such as an emergency response must fall, somehow, on the elected legislature, who alone have the ability to negotiate and compromise, even with the executive, in order to create laws that reflect the will of the majority. Even reliance on moral input from scientific communities, whom legislatures and executives can question for advice, is a moral decision. During a prolonged emergency, the government makes a fundamental moral decision when they balance scientific input with the moral arguments put forth by business communities and the general public. These moral decisions belong to a legislature to make, not an executive.
A church closed in light of restrictions on mass indoor gatherings due to the coronavirus. South Bay United Pentecostal Church, a congregation outside of San Diego, filed a lawsuit against Governor Newsom’s executive order restricting the occupancy of religious buildings, citing violations of religious freedom. Photo by Martyn Pattison.
Yet representative democracy is only a roof resting on other important pillars of Republicanism. Two of these, the separation of powers and civil liberties, also face threats from the expanded scope of executive power. When governors, regardless of law, take up an unprecedented quasi-legislative power to order the daily affairs of a state’s operation, as Whitmer has done in Michigan and Evers had done in Wisconsin, they effectively operate as two branches of government at once, as executive and legislative. An equivalent break in the separation of powers would be if a legislative assembly chose to decide whether its own laws aligned with the constitution, regardless of what judicial bodies ruled. Just as the distinction between law interpreter and law writer is critical to a well-ordered Republic, so is the distinction between law writer and law enforcer.
Finally, as the U.S. Supreme Court decision in California’s case demonstrated, executive authority also threatens natural civil liberties, such as free speech and religious liberty. A rule of law can protect these liberties by creating certain zones of moral non-action for legislative and executive authorities. But in order to spare an incomplete list of these liberties, codes of law must rest on a supplemental theory that protects all civil liberties, especially those that are not delineated.
Alexander Hamilton believed governments protect all civil liberties by a theory of limited government, but he also supported energetic executive action along the lines of modern governors’ emergency responses. These apparently conflicting ideals led him to argue against enumerated liberties in a Bill of Rights in Federalist No. 84: “[W]hy declare that things shall not be done which there is no power to do? Why, for instance, should it be said that liberty of the press shall not be restrained, when no power is given by which restriction may be imposed?” In this argument, he holds that expressly limited authority is the greatest defense for civil liberties from government encroachment. But he also stated in Federalist No. 70: “Energy in the Executive is a leading character in the definition of good government.” By this statement, however, he does not mean energy to act unilaterally and against civil liberties, but in the proper roles of the executive, namely in “protection against foreign attacks[,] … the steady administration of the laws[,] … the protection of property[, and] … the security of liberty.” But when governors usurp legislative authority and violate civil liberties they go beyond limited powers; even ardent supporters of an energetic executive, like Hamilton, would not support such action.
Many governors throughout the COVID-19 pandemic have acted energetically, but have acted against civil liberties. States besides California have restricted religious liberty, and some others have arguably diminished the right to bear arms as well. Economic shutdowns even violate certain interpretations of a right to property. These actions have served legitimate purposes, but they have prioritized outcomes over inherent rights. Some civil liberties, such as peaceful assembly, have not been reduced by executive action, albeit only because of a fluke of popular support, rather than a theory of natural rights.
If Americans value the Republican system, then they must not tacitly accept these subjugations of representative democracy, the separation of powers, and civil liberties. These principles are necessary for ordered liberty, even when the nation faces a public health crisis. Americans must think deeply about the accelerated erosion of our political structure. Such a structure, if ordered properly, is the only means to secure both Republicanism—and therefore liberty—and the public health.
Timothy Kinnamon is a sophomore in Columbia College studying Classics and Political Science. He serves as the current Right Honorable Secretary of the John Jay Society and is a co-host of Columbia Witness’s podcast The Good Fight: Where Campus Meets Christ. He fears, as Cicero once did, that rem vero publicam penitus amisimus.
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