In Case of Emergency, Break Governors’ Overreach
When Covid arrived in the United States, all 50 governors declared a state of emergency They shut down schools, offices, stores, churches, and public parks—initially justifying these unprecedented restrictions as the now-familiar “two weeks to flatten the curve.” With few exceptions (e.g., Georgia, Florida) these emergency orders quickly morphed into abuses of power that continued for months and, in some states, for years.
The first wave of closures seemed like reasonable stop-gaps to save hospitals from being overwhelmed. But once governors got a taste of emergency power, many could not resist demanding more, even when legislators reconvened. They extended their emergency authority again and again. There are many examples. Michigan Governor Whitmer declared extension after extension until a court finally cut her off California Governor Newsom was unchecked by the courts, so he extended his emergency authority for almost three years NCLA brought suit or filed amicus briefs in cases against state governments in Massachusetts, Oregon, Pennsylvania, and Virginia, among others.
Governors found emergency authority so seductive because it appeared to have few limits. Before Covid, closing schools and businesses would have been unthinkable—mass shutdowns were not contemplated by typical pandmic preparation plans. Yet governors used emergency authority to order these closures with the stroke of a pen. They also learned they could earn political dividends by doling out rewards and exemptions. The resulting arbitrary orders are all too familiar: Permitting large retailers to operate but shutting small businesses; permitting mass political demonstrations but closing public parks and children’s playgrounds; permitting restaurants and casinos to operate but clamping down on churches, synagogues, and mosques. Some governors pleased their political allies by keeping public schools closed for a year or more, long after evidence showed the closures made no scientific sense.
When legislators passed laws to curtail these emergency powers, some governors fought back, even though “police power” is historically understood to belong to the legislature. They vetoed legislation. They battled their legislatures in court. Private citizens and businesses also challenged emergency orders. In these lawsuits, courts did occasionally limit or strike down emergency orders. Far more often, courts deferred to public officials precisely because the officials cited their emergency powers, as in NCLA’s lawsuit against the Governor of Massachusetts, Desrosiers v. Baker This judicial abdication eliminated the only remaining check on widespread violations of civil liberties during the Covid emergencies.
To prepare for the next emergency, legislatures must renew their efforts to limit governors’ authority—to begin, by barring governors from extending emergencies without legislative consent. Courts need to step up, too. In particular, they should end the near-total deference many exhibited when executive officials asserted emergency authority in the name of public health. Courts also should use existing tools to test whether emergency orders rest on scientifically credible evidence.
The Covid pandemic left many state governments infected with a legal variant of Long Covid, because the pandemic showed governors how easily they can abuse emergency powers. Already, governors have declared “emergencies” in the name of chronic matters such as climate change. States need to build solid bulwarks against these wanton uses of emergency authority. If they don’t, future emergencies—real or only claimed— will expose us to new epidemics of executive and administrative abuse.
April 1, 2025