Supreme Court Justice Antonin Scalia often noted that the primary safeguard of our constitutional liberties is the structure of our government. Every banana republic has a bill of rights, he once said, but the strength of the American system is the separation of powers.
At the federal level, there are three separate, co-equal branches of government that must operate together for our representative republic to function properly, and this balance of power is mirrored at the state level. Unhappily, our system today is not functioning as designed.
Since March, the separation of powers has been off-kilter, shifted disproportionately to state executives, who are ruling outside the boundaries of their proper authority. In a moment of national panic, Americans permitted their state and local executives to take power—to declare states of emergency and to implement lockdowns—and now those executives won’t give that power back.
Legally, the executives are operating pursuant to their “emergency powers.” Executives are often authorized to declare a state of emergency, which activates emergency plans that the state and its localities have prepared, and transfers significant control to the governor. Although it varies by state, this authority is typically quite broad.
If you examine any of the lockdown or mandatory masking orders, you will largely see a relatively formulaic approach. First, the edict will recite the facts that support the claim there is an ongoing catastrophe, then it will list the legal authority, and finally the resulting mandates.
For example, in Virginia, when Gov. Ralph Northam issued his masking order, he called upon the powers vested in him by Article V of the Virginia Constitution, then pointed to § 44-146.17 of the Virginia Code. That’s the meat of the matter. That section of the code spells out the scope of the state executive’s authority during an emergency. read more