Guest Opinion: New law properly checks governor’s power

Published 7:47 am Tuesday, January 17, 2023

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By John Hood

When COVID-19 first struck North Carolina nearly three years ago, Gov. Roy Cooper responded with a series of executive orders that closed or limited the operations of schools, businesses, public amenities and even churches. Cooper’s attempt to regulate worship services didn’t survive legal challenge, but most of his other pandemic policies stayed in place for quite a long time — and were often stricter than the policies enforced in nearby states.

You may believe the governor’s approach was wise. You’d have some evidence for your belief. COVID deaths per capita have been lower in North Carolina than in, say, South Carolina or Tennessee. And while the state’s economy took a huge hit during 2020, it bounced back quickly. Since the beginning of 2020, North Carolina’s economy has grown by an average inflation-adjusted rate of 2.8%, higher than the southeastern average of 2.1%.

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On the other hand, you may believe Cooper’s approach was unwise. You’d have some evidence for your belief, as well. Careful studies haven’t found a strong effect of stringent regulation on the course of the disease. There are big differences in death rates across the states, to be sure, but they are better explained by vaccination rates as well as longstanding differences in such risk factors as age and obesity.

According to the most recent data I can find, published in early December, North Carolina ranks 29th in risk-adjusted COVID deaths, with 308 deaths per 100,000 residents. Florida, which under Gov. Ron DeSantis was notably less restrictive during the pandemic, actually ranks better at 31st, with 299 deaths per 100,000. The annual growth rate of its economy, 3.8% since the start of 2020, far surpasses our own.

I could spend the rest of this column presenting more evidence for or against the proposition that Roy Cooper struck the right balance. But I won’t. Regardless of which policy choice was best, it was never legitimate for any one person to decide the question.

Cooper is our duly elected governor, yes. He possesses a few powers enumerated by North Carolina’s constitution. Much of his authority only exists, however, because the General Assembly has delegated certain tasks to his office.

Among those are the powers to declare emergencies and quarantine sick people during pandemics. When the Cooper administration issued its initial executive orders in March 2020, it stretched the language of the preexisting Emergency Management Act far beyond the breaking point. Cooper failed to seek approval from the majority of the statewide executives who form the Council of State, as the statute clearly required. He also failed to employ any reasonable definition of “emergency,” in effect claiming that a governor could declare a perpetual emergency and wield “temporary” powers for an indefinite period.

Thanks to language included in a subsequent budget bill, which Cooper felt compelled to sign for other reasons, the Emergency Management Act has finally been rewritten to clarify these matters — and to restore proper checks and balances in North Carolina government.

For example, any statewide emergency declared by a governor will now automatically expire in 30 days unless extended by a majority vote of the Council of State. If a member fails to vote, that’s counted as an affirmation, which strikes me as reasonable. After 60 days, the emergency will expire unless extended by an act of the General Assembly. That’s reasonable, as well. Remember: all authority to enact public-health regulations ultimately derives from the legislature. Some of that power is delegated to the executive branch during an emerging crisis, when convening the General Assembly would be impractical, but that delegation was never meant to be — and under the rule of law cannot be — more than a temporary expedient.

To restore constitutional governance here is not necessarily to settle the question of whether Roy Cooper chose the right COVID policy. Perhaps North Carolina’s other elected officials would have gone along with his approach. It was Cooper’s legal role to seek to persuade them, not to shove them aside.

John Hood is a John Locke Foundation board member. His latest books, Mountain Folk and Forest Folk, combine epic fantasy with early American history (