By Joseph Fulgham
Director of Policy & Communications
Delaware House of Representatives
Republican Caucus
Earlier this week, Governor Matt Meyer rejected a bipartisan effort to reform Delaware law and add a check on the unlimited power his office wields during a State of Emergency.
On Wednesday, the governor vetoed House Substitute 1 for House Bill 329 (as amended) – a decision he delayed until the last possible moment, when he was legally forced to act.
To understand what is at stake, a little context is needed.
At present, a governor can declare a State of Emergency in response to an emergency or disaster, or when such an occurrence is imminent. A State of Emergency can be maintained for up to 30 days and then renewed for an additional 30 days, an unlimited number of times. During the State of Emergency, the governor becomes an autocrat, able to unilaterally issue executive orders that carry the weight of law.
No one disputes that the state’s chief executive needs such power to quickly and decisively deal with a manmade or natural occurrence that suddenly endangers the public welfare. This sweeping authority had never been questioned until COVID-19 appeared.
After declaring a State of Emergency in March 2020, Governor John Carney maintained it for two years through a series of rolling renewals, issuing hundreds of edicts contained in dozens of executive orders during that span. These orders carried the weight of law and impacted the daily lives of every Delawarean in countless ways.
Delaware had never experienced a State of Emergency maintained for such a long span. It quickly demonstrated the need for change.
Over those two years, thousands of Delawareans contacted their state legislators expressing wide-ranging concerns about the governor’s orders. Those constituents often cited valid concerns about equity, safety, effectiveness, violations of constitutional freedoms, business viability, the quality of remote public education, and more. State lawmakers could do little beyond sharing their objections with the governor’s office and asking his staff to bring them to his attention. Citizens were powerless to impact the process because their elected officials had no recourse when the governor issued an order.
Under the circumstances of the pandemic, the courts were also not much of a check on gubernatorial authority.
The purpose of HS 1 for HB 329, sponsored by State Rep. Rich Collins (R-Millsboro), was to give Delaware citizens the ability to be heard, through their elected representatives, should such a situation ever recur.
Under the proposal, the governor would continue to be able to declare and maintain a State of Emergency for up to six consecutive months (180 days). The governor could renew the order, but the General Assembly could amend or terminate any subsequent renewal through a concurrent resolution.
The bill also pointedly included a clause that it would not take effect until after Gov. Meyer left office, even if elected to a second term. This legislation would not affect his administration.
In his eight-page veto message, the governor complained that the bill “tries to give the General Assembly the power to act with the force of law without requiring it to follow the constitutional lawmaking process.” That objection is transparently hypocritical. This is precisely the authority the governor’s office currently wields during a State of Emergency. Giving the state legislature the ability to check the governor’s unfettered power does not skew the process; it balances the scales.
The governor’s veto message also contended that “in an emergency, divided command means delayed action, confused responders, and blurred accountability. When public safety is at stake, Delaware needs one clear chain of command and one official the public can hold accountable.”
Both points are ludicrous. As previously noted, the reform bill keeps the governor’s ability to declare and maintain a State of Emergency for up to six months intact, as well as the unlimited authority to issue unquestioned orders. The emergency declaration could still be maintained afterward. The only change would be that after the first 180 days, state lawmakers would have a seat at the decision-making table.
The second aspect of the governor’s objection, accountability, strikes at the heart of the matter. At present, citizens have no available option to hold a governor accountable during a State of Emergency. None. The governor is driving the car, and citizens are restrained in the back seat along for the ride.
At an unfortunate time in our state and nation, when Republicans and Democrats cannot seem to agree on anything, Delaware’s lawmakers found common ground on the need for reform. This bipartisan bill cleared the House and the Senate unanimously.
When the 154th General Assembly convenes next year, legislators should return to this topic and seize the opportunity to improve our state’s emergency response laws, safeguarding the right of all Delawareans to have their voices heard.
