By Terri Jo Neff
In what could be a major rebalancing of powers between the executive and legislative branches, the State Senate passed legislation earlier this week to rein in a governor’s state of emergency powers.
Lawmakers have tried since January to pass legislation to ensure a governor confers with the legislature in certain instances once a public health emergency has been declared. The intent was to ensure a governor cannot issue unending emergency executive orders which impact business offerings, public health decisions, school functions, and whether families can see loved ones in nursing homes.
Many Arizonans do not realize the state remains under a declared emergency even though Gov. Doug Ducey has lifted many of his COVID-19 executive orders. Sen. Michelle Ugenti-Rita introduced a bill, SB1084, in an attempt to reassert the legislature’s power. Her bill was heard in the House and Senate but stalled in April due to concerns by some within the Republican caucus which holds a majority in both chambers.
Fast forward to the Senate’s marathon consideration of the 11-bill budget package on Tuesday and Wednesday. Ugenti-Rita proposed the text of her bill as a floor amendment to a budget reconciliation bill, SB1819. Her amendment passed on a 16 to 14 party line vote, as did SB1819 itself.
It is now up to House Speaker Rusty Bowers to secure 31 votes in his chamber to get the legislation to Ducey’s desk.
Current state law allows lawmakers to void a public health state of emergency based on a general majority vote in both chambers. However, if the legislature is not in session then two-thirds of lawmakers would have to authorize a special session, or the governor would have to call a special session.
According to the amendment language, a governor’s initial state of emergency
proclamation with respect to a public health emergency will be capped at 30 days beginning Jan. 2, 2023. It allows a governor to extend the public health state of emergency up to 120 days, but any single extension could not be for more than 30 days.
Once the 120 day period is up, the state of emergency will terminate unless extended in whole or in part by a concurrent resolution of the legislature. Lawmakers could vote to extend the state of emergency as many times as necessary in periods of not more than 30 days at a time.
Another key provision of the legislation prohibits a governor from proclaiming a new state of emergency upon termination of a state of emergency based on the same conditions unless there is passage of a concurrent resolution of the legislature consenting to the new state of emergency.
Another amendment which passed with SB1819 makes it clear what emergency powers cities, towns, and counties will have -and won’t have- in the future. It includes a ban on curfews, business closures, and other public health declarations such as mask mandates which run counter to a governor’s orders.