Venice Commission - Observatory on emergency situations
www.venice.coe.int
Disclaimer: this information was gathered by the Secretariat of the Venice Commission on the basis of contributions by the members of the Venice Commission, and complemented with information available from various open sources (academic articles, legal blogs, official information web-sites etc.).
Every effort was made to provide accurate and up-to-date information. For further details please visit our page on COVID-19 and emergency measures taken by the member States: https://www.venice.coe.int/WebForms/pages/?p=02_EmergencyPowersObservatory&lang=EN
1. Are there specific provisions in the constitution of your country applicable to emergency situations (war and/or other public emergency threatening the life of the nation)?
Article I, Section 8 of the United States Constitution grants to Congress powers relating to war and military action: to declare war; to raise and support armies; to provide and maintain a navy; and to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions.
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
At Federal Level: The four organic laws of the United States have been held to be the Declaration of Independence, the Articles of Confederation, the Northwest Ordinance, and the United States Constitution. The powers of the federal government discussed in Q1 regarding Articles I and II of the United States Constitution are equally relevant here in Q2.
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
At Federal Level: Title 42 of the United States Code, amended by the Public Health Service Act, provides that “the Secretary may take such action as may be appropriate to respond to the public health emergency, including making grants, providing awards for expenses, and entering into contracts and conducting and supporting investigations into the cause, treatment, or prevention of a disease or disorder . . . .” 42 U.S.C. §247 (2019). Furthermore, the “Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” 42 U.S.C. §264 (2002).
4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?
The federal government and all 50 states (including the five discussed herein) issued declarations of states of emergency in response to the COVID-19 pandemic.
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
At Federal Level: Since President Trump issued the federal declaration of a national emergency concerning COVID-19 as a proclamation, the declaration was not subject to congressional approval or review. The source of the President’s power to make such proclamations comes from his Article II Commander-in-Chief powers—specifically the take-care clause —as well as from express or implied statutory approval from Congress.
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
At Federal Level: Although President Trump’s Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Proclamation 9994) is potentially subject to judicial review, it has not been submitted to judicial review as of June 16, 2020.
7. Are derogations to human rights possible in emergency situations under national law? What are the circumstances and criteria required in order to trigger an exception? Was a derogation under Article 15 ECHR or under any other international instrument made? Does national law prohibit derogation from certain rights even in emergency situations? Is there an explicit requirement that derogations should be proportionate, that is limited to the extent strictly required by the exigencies of the situation, in duration, circumstance and scope?
At Federal Level: According to the doctrine, there are three specific exceptions to general rules in the case of an emergency situation, two of which concern individual rights (possibility to suspend the habeas corpus rule in cases of insurrection or invasion - which would be inapplicable in the cases of epidemy where courts can hear cases via videolinks, and the indictment by a grand jury) and the third relating to the powers of the states vis-a-vis the national government (see Q1).
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
The United States does not use the concept of “derogation” from constitutional rights, and there is no recognized process by which for either the legislature or the executive to derogate from protected rights. That being said, limitations of rights are routinely accepted within the ordinary jurisprudence of both the federal and state Supreme Courts.
9. If a declaration of state of emergency was not made, did the Executive enjoy additional powers under the ordinary legislation on health risks or another public emergency? Did it decide to impose exceptional restrictions on human rights based on these laws?
The federal government and all 50 states (including the five discussed herein) issued declarations of states of emergency in response to the COVID-19 pandemic. Thus, the executive had no need for any alternative additional powers under the ordinary legislation of health risks or other public emergencies.
10. Are the possibilities for the Executive to derogate from the normal division of powers in emergency circumstances limited in duration, circumstance and scope?
United States constitutional law does not use the concept of “derogation” from basic principles of the separation of powers. As such, there are no possibilities for the President of the United States to derogate from the normal division of powers in emergency circumstances.
11. Were the sessions of parliament suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of parliament during the emergency adopted? By parliament or by the executive?
At Federal Level: Congress has remained open during the COVID-19 pandemic. It is true, however, that those representatives that might have been exposed to COVID-19, either directly or by coming into contact with staffers or other individuals who tested positive for the virus, have chosen to “self-quarantine” during the ongoing session. Furthermore, in response to concerns about current regulations regarding quorums in Congress, the House of Representatives passed a resolution allowing for remote voting by proxy for the duration of the COVID-19 pandemic. The same resolution has not passed the Senate.
12. Were the judicial sessions of the Constitutional Court or court with equivalent jurisdiction and/or other courts be suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of these courts during the emergency adopted? By parliament or by the executive?
At Federal Level: The United States Supreme Court announced on March 12 that, per coronavirus public health recommendations, it would be closing its building to the public temporarily. On March 16, the Supreme Court postponed its March argument session, and on April 3, it postponed April arguments as well. To accommodate these changes due to COVID-19, the Court extended the filing deadline. On April 13, the Court announced that from May 4, it would begin to hear a limited number of cases via telephone conference.
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
At Federal Level: Congress has responded to the COVID-19 pandemic in several ways. Congress passed the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 on March 6, 2020, providing $8.3 billion to respond to the pandemic. Another bill was passed by Congress on March 18, the Families First Coronavirus Response Act. On March 27, 2020, a massive coronavirus relief package called the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) was passed by Congress and signed into law by President Trump, under which $2 trillion was allocated to help the country deal with the economic fallout of the COVID-19 pandemic.
14. Was this additional legislation subject to judicial review?
At Federal Level: Although the additional congressional legislation is potentially subject to judicial review, as of June 16, 2020, the additional legislation has not been submitted to judicial review and rather is fully operative.
15. Was the state of emergency prolonged? For how long? Was the prolongation subject and submitted to parliamentary control? Was it subject and submitted to judicial review?
At Federal Level: President Trump issued the Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Proclamation 9994) on March 13, 2020. It has been in effect ever since, and it has not been submitted to judicial review.
16. What are the legal remedies available against general measures and/or individual taken under the state of emergency? What are the legal remedies for measures taken in application of ordinary legislation on health crisis? Has any change to the available legal remedies been decided on account or brought about by the state of emergency? Were any emergency measures invalidated and for what reasons (competence, procedure, lack of proportionality etc.)
In both Federal and State jurisdictions, all of the ordinary legal remedies of judicial review are available against both general and individual measures taken under the state of emergency, as well as against ordinary legislation. There has been no change to the available legal remedies related to the state of emergency. The only successful judicial invalidation of an emergency measure was by the Supreme Court of the State of Wisconsin (see details above, in response to Question 6).
17. If parliamentary and/or, where applicable, presidential elections were scheduled to take place during the Covid-19 emergency: were they held? Were special arrangements made, and if so, which arrangements? Was it necessary to amend the electoral legislation? What was the turnout? How was it compared to the previous elections? If they were postponed, what was the constitutional or legal basis for doing so? Who took the decision? For how long were they postponed? Was this decision subject and submitted to parliamentary control or judicial review?
General elections for the President of the United States and for the U.S. Congress have not been affected because they are scheduled to take place on Tuesday, November 3, 2020.
18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.
GA: Local elections were conducted concurrently with the primaries for national-level office discussed in Q17 on June 9.
United States of America
Article II, which vests Executive Power in the President (Section 1), also makes the President the Commander-in-Chief of the army and navy (i.e., the armed forces in general). This Commander-in-Chief power also extends to the militia when called into federal service (Section 2). Moreover, Article II, Section 3 requires that the President “take care that the laws be faithfully executed….”
According to the doctrine, there are three specific exceptions to general rules in the case of an emergency situation, two concerning individual rights and the third concerning the powers of the states vis-a-vis the national government. First, the privilege of the writ of habeas corpus cannot be suspended, “unless when in cases of rebellion or invasion the public safety may require it.” Second, no one may be charged with a capital or otherwise infamous crime without an indictment by a grand jury, “except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger.” Third, no state may engage in war, “unless actually invaded, or in such imminent danger as will not admit delay (see ” William B. Fisch, Emergency in the Constitutional Law of the United States, 38 AM. J. COMP. L. SUPP. 389, 389-391 (1990). “There is no indication either in the document itself, or in the adoption literature supporting it, of an intention to provide exceptional rules for non-military emergencies.” That is, there is no evidence that the Framers of the Constitution wanted “to permit certain government action in emergency situations which would be impermissible in normal times.” Rather, “it appears to have been assumed that the power to regulate encompasses whatever power is needed to deal with emergencies.” Thus, the Article I and Article II powers to regulate in emergency situations threatening the nation extend to non-military emergencies. The COVID-19 pandemic therefore falls under the purview of these governmental powers.
The National Emergencies Act (NEA), 50 U.S.C. § 1601-1651 (1976), provides that “[w]ith respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency.” 50 U.S.C. § 1621 (a). Furthermore, “[a]ny provisions of law conferring powers and authorities to be exercised during a national emergency shall be effective and remain in effect (1) only when the President (in accordance with subsection (a) of this section), specifically declares a national emergency, and (2) only in accordance with this chapter.” 50 U.S.C. § 1621 (b). The National Emergencies Act requires the president to make a formal declaration of an emergency and then to specify which emergency powers already delegated to the president by Congress he plans to use to cope with that emergency.The Congress may veto the declaration of emergency by a resolution passed by a majority of both houses of Congress. However, to take effect this resolution will need to be countersigned by the President (in 1983, the Supreme Court decided, in INS v. Chadha, 462 U.S. 919 (1983) that the resolution is a law and thus needs to be signed - and hence vetoed - by the president). The presidential veto may be overruled by a two-thirds vote of both Houses.
In addition, the President has powers under other ordinary legislation which he may use during the epidemy: thus, the president has the power ubder the Defense Production Act (DPA) to order from private companies the production of scarce supplies that are needed for national security.
At State Level:
GA: O.C.G.A. § 38-3-51 permits the governor to declare a state of emergency in the event of “actual or impending emergency or disaster of natural or human origin, or pandemic influenza emergency, or impending or actual enemy attack, or a public health emergency, within or affecting this state or against the United States.” To declare a state of emergency, the Governor must judge the disaster to be “of sufficient severity and magnitude to warrant extraordinary assistance by the state to supplement the efforts and available resources of the several localities and relief organizations in preventing or alleviating the damage, loss, hardship, or suffering threatened or caused thereby.” O.C.G.A. § 38-3-3(7). Under Art. V, §2, para. 2 of the Georgia Constitution, within three days of declaring a state of emergency, the Governor must convene a special session of the legislature to certify that a state of emergency exists. Once declared, the state of emergency may continue for no more than 30 days unless renewed by the governor and should be terminated when the emergency ends. The state legislature can also terminate the state of emergency at any time without the consent of the governor by concurrent resolution. O.C.G.A. § 38-3-51 (a).
NE: Neb. Rev. Stat. 81-829.40 (3) requires the governor to issue a state-of-emergency proclamation “if he or she finds that a disaster, emergency, or civil defense emergency has occurred or that the occurrence or threat thereof is imminent.” The state of emergency remains in effect until the governor concludes that the emergency has been addressed such that the threat no longer exists. The (unicameral) legislature can terminate the state of emergency at any time.
NY: Article III, §25 of the Constitution of the State of New York provides that “the legislature, in order to insure continuity of state and local governmental operations in periods of emergency caused by enemy attack or by disasters (natural or otherwise), shall have the power and the immediate duty (1) to provide for prompt and temporary succession to the powers and duties of public offices, of whatever nature and whether filled by election or appointment, the incumbents of which may become unavailable for carrying on the powers and duties of such offices, and (2) to adopt such other measures as may be necessary and proper for insuring the continuity of governmental operations.”
Pursuant to New York Executive Law §28, “Whenever the governor, on his own initiative or pursuant to a request from one or more chief executives, finds that a disaster has occurred or may be imminent for which local governments are unable to respond adequately, he shall declare a disaster emergency by executive order.” N.Y. EXEC. LAW § 28. Moreover, pursuant to New York Executive Law § 24, the “chief executive may proclaim a local state of emergency within any part or all of the territorial limits of such local government . . . .” N.Y. EXEC. LAW § 24. Furthermore, pursuant to New York Executive Law § 29-a, “the governor may by executive order temporarily suspend any statute, local law, ordinance, or orders, rules, or regulations, or parts thereof, of any agency during a state disaster emergency, if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster or if necessary to aid in coping with such disaster.” N.Y. EXEC. LAW § 29-a.
WA: Rev. Code Wash. (ARCW) §43.06.010 (12) permits the governor to proclaim a state of emergency “after finding that a public disorder, disaster, energy emergency, or riot exists within this state or any part thereof which affects life, health, property, or the public peace.” The state of emergency lasts until the governor terminates it, which the governor must do “when order has been restored in the area affected.” Rev. Code Wash. (ARCW) §43.06.210.
WI: Article IV, §34 of the Wisconsin Constitution provides that “ the legislature, in order to ensure continuity of state and local governmental operations in periods of emergency resulting from enemy action in the form of an attack, shall (1) forthwith provide for prompt and temporary succession to the powers and duties of public offices, of whatever nature and whether filled by election or appointment, the incumbents of which may become unavailable for carrying on the powers and duties of such offices, and (2) adopt such other measures as may be necessary and proper for attaining the objectives of this section.”
Pursuant to Wisconsin Statute 323.10, “If the governor determines that a public health emergency exists, he or she may issue an executive order declaring a state of emergency related to public health for the state or any portion of the state and may designate the department of health services as the lead state agency to respond to that emergency.” WIS. STAT. § 323.10 (2009).
Moreover, as stated above, the National Emergencies Act (NEA), 50 U.S.C. §1601-1651 (1976), allows the President to declare a national emergency in appropriate circumstances; a public health emergency is within the scope of these relevant presidential powers.
At State Level:
GA: Georgia has dedicated laws regulating the governor’s activities during a public health emergency, which is defined as the occurrence or imminent threat of an illness or health condition that is reasonably believed to be caused by bioterrorism or the appearance of a novel or previously controlled or eradicated infectious agent or biological toxin and poses a high probability of any of the following harms:
(A) A large number of deaths in the affected population;
(B) A large number of serious or long-term disabilities in the affected population; or
(C) Widespread exposure to an infectious or toxic agent that poses a significant risk of substantial future harm to a large number of people in the affected population. O.C.G.A. §38-3-3(6).
Before declaring a public health emergency specifically, the governor must “issue a call for a special session of the General Assembly pursuant to Article V, Section II, Paragraph VII of the Constitution of Georgia.” This session must convene on the day after the state of emergency is declared and either support or terminate the public health emergency. O.C.G.A. 38-3-51(a).
In addition to the emergency powers granted to the governor during any state of emergency, during a public health state of emergency, the governor can:
- Compel a health care facility to provide services or even transfer the management and supervision of the health care facility to the Department of Public Health for the duration of the public health emergency;
- Impose a mandatory vaccination program or quarantine (though the Department of Public Health can do this whether a state of emergency exists or not—see O.C.G.A. §31-12-4 and O.C.G.A. §31-12-3(a)).
- Direct the Department of Public Health to coordinate the state’s response to the public health emergency (coordinate responses, collaborate with other entities, provide information to the public, etc.) O.C.G.A. §38-3-51 (d) (4.1) and (h)(3)(i)
NE: Public health emergencies are not specifically discussed in the Nebraska law that addresses the declaration of a state of emergency. However, the governor has fairly broad powers to respond to the emergency that can be used to achieve public health objectives. These include controlling the movement of people within a disaster area, transferring state personnel or changing the function of departments of state government to respond to the emergency, and commandeering private property (subject to the payment of appropriate compensation). Neb. Rev. Stat. 81-829.40(6).
NY: Public health emergencies are not specifically discussed in the New York state law that addresses the declaration of a state of emergency. However, the governor can declare a disaster emergency when he or she “finds that a disaster has occurred or may be imminent for which local governments are unable to respond adequately.” N.Y. EXEC. LAW § 28 (McKinney 1981). Public health emergencies such as COVID-19 are covered within the broad scope of this statute if, as in the case of COVID-19, the governor considers the outbreak an emergency or determines that local governments will not be able to address the issue adequately.
WA: Public health emergencies are not specifically discussed in the Washington state law that addresses the declaration of a state of emergency. However, the governor can use his or her general state-of-emergency powers to achieve public health objectives (e.g., preventing groups of any size from gathering in public places—see RCW §43.06.220(1)(b)). RCW §43.06.220(1)(h) further empowers the governor to prohibit “such other activities as he or she reasonably believes should be prohibited to help preserve and maintain life, health, property or the public peace.”
WI: Pursuant to Wisconsin Statute 323.10, “If the governor determines that a public health emergency exists, he or she may issue an executive order declaring a state of emergency related to public health for the state or any portion of the state and may designate the department of health services as the lead state agency to respond to that emergency.” WIS. STAT. § 323.10 (2009).
At Federal Level: On March 13, 2020, President Trump issued the Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Proclamation 9994). This proclamation was made by the authority vested in the President “by the Constitution and the laws of the United States of America, including sections 201 and 301 of the National Emergencies Act (50 U.S.C. 1601 et seq.) and consistent with section 1135 of the Social Security Act (SSA), as amended (42 U.S.C. 1320b-5).” The national emergency is ongoing and remains in effect.
Before that, on 31 January Health and Human Services Secretary Alex Azar declared a public health emergency within his authority under the Public Health Service Act. This declaration was retroactive to January 27, 2020, and triggered a (limited) number of sanitary measures.
At State Level the state of emergency was declared and extended in all States, for example by Governor Brian Kemp of GA who declared a public health state of emergency for COVID-19 on March 14, 2020. He renewed this state of emergency several times, most recently extending it through July 12, 2020. On April 2, 2020, Governor Kemp issued an executive order establishing a shelter-in-place order for the State of Georgia. The shelter-in-place order expired on April 30, 2020, and was restricted to “medically fragile and elderly Georgians.”
NE: Governor Pete Ricketts signed a state-of-emergency declaration for COVID-19 on March 13, 2020. The state of emergency will remain in effect until terminated by Gov. Ricketts, unless it is first terminated by the legislature. Note that as of June 16, 2020, Governor Ricketts has not issued a shelter-in-place order for the State of Nebraska.
WA: Governor Jay Inslee declared a state of emergency for COVID-19 on February 29, 2020. It will remain in effect until Gov. Inslee terminates it, which he must do “when order has been restored in the area affected.” Rev. Code Wash. (ARCW) §43.06.210. On March 23, 2020, Governor Inslee issued an executive order establishing a stay-at-home order for the State of Washington. He extended the order indefinitely on April 2, through May 4, at which time he issued orders for a phased easing of the stay-at-home requirements.
NY: In Executive Order 202, Governor Andrew Cuomo declared a disaster emergency for COVID-19 for the entire State of New York on March 7, 2020. The governor made this declaration of a disaster emergency “pursuant to Section 28 of Article 2-B of the Executive Law.” The executive order will remain in effect until September 7, 2020. On March 20, 2020, Governor Cuomo issued an executive order establishing a stay-at-home order for the State of New York. On May 14, Gov. Cuomo extended the stay-at-home order for the State of New York through June 13.
WI: On March 12, 2020, Governor Tony Evers proclaimed that “a public health emergency, as defined in Section 323.02(16) of the Wisconsin Statutes, exists for the State of Wisconsin.” On March 24, 2020, Governor Evers issued an executive order establishing a stay-at-home order for the State of Wisconsin. He extended the stay-at-home order on April 24. However, the Wisconsin legislature filed suit to strike down the order, and the Wisconsin Supreme Court declared the order invalid on May 13, 2020, in the case Wisconsin Legislature v. Palm.
At State Level:
GA: As a public health emergency, the declaration was required to be submitted to the legislature for its approval in a special session. O.C.G.A. 38-3-51(a). It was approved. Going forward, the state legislature can terminate the state of emergency at any time by concurrent resolution; this does not require the consent of the governor. O.C.G.A. § 38-3-51 (a).
NE: The state-of-emergency declaration was not required to be submitted to the legislature for its approval, but the (unicameral) legislature can terminate the state of emergency at any time. Neb. Rev. Stat. 81-829.40 (3).
NY: The declaration establishing a disaster emergency did not require prior legislative approval, since it was issued by the governor by executive order, nor does the legislature have the power to terminate it. N.Y. EXEC. LAW § 28 (McKinney 1981).
WA: The declaration was not required to be submitted to the legislature for its approval, nor does the legislature have the power to terminate it. Rev. Code Wash. (ARCW) §43.06.010 (12).
WI: The declaration establishing a health emergency did not require prior legislative approval, as it was issued by the governor by executive order. However, “the executive order may be revoked at the discretion of either the governor by executive order or the legislature by joint resolution.” WIS. STAT. § 323.10 (2009).
At State Level: Although each state’s declaration of a state of emergency is potentially subject to judicial review, as of June 8, 2020, none of these declarations has been submitted to judicial review. There have, however, been several judicial challenges to the stay-at-home and other orders issued by various governors (see below).
WI: Andrea Palm, the current Secretary-designee of the Wisconsin Department of Health Services, by the power delegated to her by Governor Evers, issued Emergency Order 12 on March 24, 2020, requiring “all individuals present within the State of Wisconsin . . . to stay at home or at their place of residence.” Then, on April 16, 2020, Palm issued Emergency Order 28, extending the stay-at-home order. The Wisconsin Legislature sued Palm to have the Wisconsin Supreme Court declare the extension unconstitutional. On May 13, 2020, in Wisconsin Legislature v. Palm, 942 N.W.2d 900 (Wis. 2020), the Wisconsin Supreme Court did indeed overturn the extension of the stay-at-home order. Thus, the State of Wisconsin no longer has a stay-at-home order in place.
WA: Gov. Jay Inslee’s stay-at-home order has faced several legal challenges. On May 1, Franklin County Commissioner Clint Didier and gubernatorial candidate Tim Eyman filed a lawsuit aimed at forcing Inslee to reopen the county’s economy. Four Republican state legislators filed a similar challenge on May 5, contending that the emergency had been contained and therefore the stay-at-home order was unconstitutional. To date, however, these challenges—like the numerous judicial challenges to Gov. Inslee’s orders relating to church and business operations during COVID-19—have been unsuccessful.
The United States does not use the concept of “derogation” from constitutional rights, and there is no recognized process by which to derogate from protected rights, either by the legislature or by the executive. No derogation was made under Article 15 of the ECHR, to which the US are not a party, or any other international instrument.
Serious limitations on certain human rights were ordered by the executive, but mostly at the State level - for example, lockdown orders were made by State governors, but not by the national government.
As states began to gradually soften their strict stay-at-home orders, they nevertheless maintained restrictions on the size of gatherings, such as only allowing a certain percentage of building capacity to attend gatherings. In South Bay United Pentecostal Church v. Newsom, the United States Supreme Court denied a California church’s application for injunctive relief from Governor Gavin Newsom’s policy of restricting church attendance to 25% of a building’s capacity or a maximum of 100 attendees. The justices in the majority determined that Gov. Newsom’s policy did not violate freedom of religion (as enshrined in the Free Exercise Clause). The dissenting justices characterized it differently, seeing the order as “discriminat[ing] against places of worship and in favor of comparable secular businesses” (Kavanaugh, J., dissenting).
In Washington, two constitutional challenges have argued that Gov. Inslee has exceeded his state-of-emergency powers by allowing the state of emergency to persist beyond the point at which the emergency had, in the petitioners’ view, been contained. As such, they have claimed, their rights are now being improperly limited.
In Wisconsin, Andrea Palm, the current Secretary-designee of the Wisconsin Department of Health Services, by the power delegated to her by Governor Evers, issued Emergency Order 12 on March 24, 2020, requiring “all individuals present within the State of Wisconsin . . . to stay at home or at their place of residence.” Then, on April 16, 2020, Palm issued Emergency Order 28, extending the stay-at-home order. The Wisconsin Legislature sued Palm to have the Wisconsin Supreme Court declare the extension unconstitutional. On May 13, 2020, in Wisconsin Legislature v. Palm, 942 N.W.2d 900 (Wis. 2020), the Wisconsin Supreme Court did indeed overturn the extension of the stay-at-home order. Thus, the State of Wisconsin no longer has a stay-at-home order in place, for the Court placed the Wisconsin citizens’ liberty interests above the state’s interests in security and limiting the spread of the COVID-19 coronavirus.
At the federal level, the National Emergencie Act permits the President, after making a declaration of emergency, to use some powers specifically designated by this law - as President Trump did in 2019 when he declared the emergency in relation with the migration crisis and in order to use the power provided by this law to divert the funds allocated to other military projects to the building of the wall.
At State Level:
In response to COVID-19, a significant number of states adopted resolutions or bills that authorized remote voting, remote meetings, etc.
GA: The Georgia General Assembly, which had been scheduled to convene on January 13 and adjourn on April 3, suspended its legislative session indefinitely from March 14, 2020. On June 3, the Lieutenant Governor and the Speaker of the House agreed that the General Assembly would reconvene on June 15. It was therefore suspended for three months. Specific rules were passed for the special session of the General Assembly that was convened on March 16 to support the state of emergency declared by Governor Brian Kemp.
NE: The Nebraska Legislature, which had been scheduled to convene on January 8 and adjourn on April 23, suspended its session indefinitely on March 16. On May 18, the Speaker said that he would call the senators of Nebraska’s unicameral legislature back into session on July 20. If this schedule is followed, the state legislature will have been suspended for just over 4 months.
NY: The New York State Legislature suspended its session on April 2, 2020, but the suspension ended on May 26, 2020.
WA: The Washington State Legislature convened on January 13 and adjourned sine die on March 12, the last day of its planned 2020 legislative session. Accordingly, Washington’s legislative sessions were not suspended. The legislature now plans to reconvene on January 11, 2021, for its 2021 Regular Session.
WI: On April 3, 2020, Governor Tony Evers announced he was signing an executive order calling the legislature to meet in a special session beginning at 4:00pm on April 4, 2020, to discuss changes to the spring election. The legislature adjourned without taking action on Evers' proposal. Evers issued another executive order on April 6, 2020, calling on the state legislature to convene a special session on April 7, 2020, again to consider changes to the state's spring election. The legislature again adjourned without taking action on Evers’ proposal. The legislature convened for another special session on April 14, 2020. The legislature adjourned on May 13, 2020.
The federal courts of appeals (otherwise known as circuit courts) and the federal district courts have varied in their measures they have taken in response to the pandemic. Courts transitioned to virtual proceedings during the most intense phases of local outbreaks. On April 27, the “Administrative Office of the U.S. Courts [...] distributed to the courts guidelines for restoring operations that rely heavily on conditions in local communities and on objective data from local and state public health officials and the Centers for Disease Control and Prevention.”
At State Level:
In response to COVID-19, state courts commonly restricted or ended jury trials, suspended in-person proceedings, restricted access to courthouses, granted extensions for court deadlines (e.g., paying fees and fines), and encouraged teleconferences as an alternative to hearings.
GA: The Chief Justice of the Georgia Supreme Court, Hon. Harold D. Melton, declared a statewide judicial emergency on March 14, 2020. This order encouraged courts to remain open to perform “essential functions,” including: situations where an “immediate liberty or safety concern” required immediate court attention; criminal search and arrest warrants, initial appearances, and bond reviews; domestic abuse orders; juvenile court detention hearings; and mental health commitment hearings. Criminal trials that had begun were ordered to continue until completed. Court functions were to be carried out in a way that limited the risk of exposure, with the Chief Justice specifically recommending videoconferencing where possible. Deadlines were suspended for the period of the judicial emergency.
The judicial emergency was extended on April 6 and then extended and amended on May 11, 2020. It is currently set to expire on July 12. The May 11 amendments included a prohibition on jury trials and grand jury proceedings, with an exception for grand juries that had already been impaneled and needed to respond to time-sensitive issues. The order mandated, however, that no grand jury should be assembled unless public health guidance around social distancing, etc., could be followed. Other amendments gave judges discretion to reimpose deadlines and compel the participation of essential personnel in remote judicial proceedings. Courts were not permitted to engage in non-essential in-person proceedings until they elaborated “written guidelines as to how in-court proceedings generally and particular types of proceedings will be conducted to protect the health of litigants, lawyers, judges, court personnel, and the public.”
NE: All Nebraska trial courts remained open. However, the state Supreme Court ordered attorneys and parties to notify the court if someone scheduled to attend a court proceeding had an elevated risk of transmitting the novel coronavirus or if the proceedings would require travel or other activities that contravened CDC and other public health guidance. Individual counties also enacted restrictions, including health checks and the use of alternate entrances.
NY: On March 22, 2020, the filing of papers in the New York state courts was suspended except for essential matters. On April 13, the virtual court model that had been growing in scope over the past weeks expanded further, allowing for litigation to proceed remotely. The New York Court of Appeals (the court of last resort in New York) announced on April 6 that it would not be hearing oral arguments during its April/May session.
WA: On March 4, the Supreme Court of the state of Washington authorized all judges to adopt appropriate rules for the COVID-19 emergency, including closing courts where necessary. On March 20, this order was amended to suspend all jury trials (except where the jury had already been selected and social distancing could be observed). All other proceedings that took place were required to be conducted virtually, except for emergencies that could only be dealt with in person. Subsequent orders suspended the requirement of in-person oaths in open court and temporarily allowed those recent law school graduates who could not get a seat for the bar exam due to social distancing requirements to practice under supervision until they could take the exam. On April 13, the amended order from March 20 was extended through May 4 and revised to cover juvenile proceedings. The order was renewed on May 28 and extended through July 6.
WI: On March 11, 2020, the Wisconsin state courts issued a statement indicating that the administrators were monitoring the pandemic situation closely and “any decision to adjust circuit court calendars or operating procedures would be determined locally.” Two days later, on March 13, Chief Justice Patience Drake Roggensack of the Wisconsin Supreme Court issued an order limiting attendance at its March oral arguments. On March 17, the Wisconsin Supreme Court gave further instructions for alterations to appellate operations due to COVID-19 precautions. On April 10, the Wisconsin court system developed an online video conference platform to keep dockets moving. On May 15, the Wisconsin Court COVID-19 Task Force released its final report, providing guidelines to help orchestrate courts’ gradual reopening over the subsequent weeks and months. On June 3, the director of the Wisconsin state courts gave an interview about how circuit courts would start to resume in-person proceedings.
At State Level:
GA: No COVID-19 bills (presumably due to the suspension of the legislative session).
NE: No COVID-19 bills (presumably due to the suspension of the legislative session).
NY: On March 17, 2020, the New York Assembly proposed a bill to fight the COVID-19 pandemic by providing sick leave and job protection to those affected by the economic fallout of the pandemic. Although Governor Cuomo expressed skepticism that the legislature would be able to legislate further (due to the suspension of the session), state lawmakers were ready with dozens of coronavirus-related bills when the session suspension ended.
WA: In response to COVID-19, Washington state adjusted the Shared Leave Program to allow leave if an employee or someone who lives in the employee’s household is isolated or quarantined by a public health official or healthcare provider due to the virus. This change was enacted on March 17, 2020. The state had previously (on March 2) enacted legislation on Healthy Practices to Reduce the Spread of Flu, which encouraged the dissemination of information about how to limit the spread of flu and other viruses, including COVID-19.
WI: The Wisconsin Legislature passed a coronavirus response bill during the week of April 14, 2020, ensuring that enough state funds would be raised to fight the pandemic on a state level. The vote “marked the first time in Wisconsin's 172-year history that lawmakers convened a session with members participating remotely. Legislative rules require lawmakers to be present to debate and vote on bills. However, a law passed in 2009 allowed for holding virtual sessions during disasters.” Furthermore, the Wisconsin Legislature sued Secretary-designee Palm to have the Wisconsin Supreme Court declare unconstitutional the extension of the stay-at-home order.
At State Level:
Where additional state legislation has been passed (i.e., in New York, Washington state, and Wisconsin), it is potentially subject to judicial review. As of June 16, 2020, however, this legislation has not been submitted to judicial review and remains fully operative.
At State Level:
GA: Yes, the state of emergency has been prolonged twice, due to the Georgia law that requires any state of emergency to expire after 30 days unless renewed by the governor. It was renewed several times and as of June 16, 2020 it will remain in effect until July 12, 2020. The prolongation is subject to legislative control—the legislature can terminate the state of emergency at any time—but it has not yet been terminated, nor has it been submitted to judicial review.
NE: No, the state of emergency has not needed to be prolonged, since Nebraska law provides that the state of emergency will remain in effect until terminated by Gov. Ricketts, unless it is first terminated by the legislature.
NY: In Executive Order 202, Governor Andrew Cuomo declared a disaster emergency for COVID-19 for the entire State of New York on March 7, 2020. The executive order is in effect until September 7, 2020, so it has not yet needed to be prolonged.
WA: No, the state of emergency has not needed to be prolonged, since Washington state law provides that the state of emergency will remain in effect until terminated by Gov. Inslee “when order has been restored in the area affected.” Rev. Code Wash. (ARCW) §43.06.210.
WI: On March 12, 2020, Governor Tony Evers proclaimed that “a public health emergency, as defined in Section 323.02(16) of the Wisconsin Statutes, exists for the State of Wisconsin.” The proclamation did not state a date of expiration for the public health emergency, so the proclamation has not needed to be prolonged.
During the COVID-19 emergency, 16 states did, however, postpone their primary elections to select candidates for the November 2020 elections. Some of those ballots also included referendums on local questions.
GA: Georgia Secretary of State Brad Raffensperger postponed the state’s primary elections from March 24 to May 19, then further delayed them to June 9, as a result of the COVID-19 emergency. As such, the primary elections were postponed for 11 weeks. The legal basis for this postponement was O.C.G.A. §21-2-50.1, which authorizes the Secretary of State to postpone any election in an area for which the governor has declared a state of emergency. This postponement cannot exceed 45 days, hence the need to delay the primary twice. The decision is subject to judicial review. Indeed, there was even a legal challenge by the Coalition for Good Governance non-governmental organization, which sought to push the election back to June 30 in order to protect the health of poll workers, but a federal judge dismissed this as a nonjusticiable “political question.”
Due to COVID-19, Georgia mailed absentee ballot applications to all of the state’s registered voters, although voters could instead choose to vote in person. The state also propagated a rule that made drop-off boxes available for absentee voters to post their ballots. Other arrangements (social distancing, limiting building occupancy, etc.) were made on a county-by-county basis, with the state providing some masks and funding for PPE and other election infrastructure to counties. The election was fraught with problems: some voters waited hours to cast their ballots and there were issues with the new voting machines, prompting state officials to declare investigations before polls had even closed. As a result, voter turnout is currently unclear, but state officials expected comparatively high turnout for a primary election, as more than 1.2 million of the state’s nearly 7 million registered voters voted by absentee (including mail-in) ballot prior to Election Day, a dramatic increase over the 40,000 or fewer that usually do so. Voter turnout for the same election in 2016 stood at approximately 33%.
NE: On May 12, 2020, Nebraska held its in-person primary election as scheduled. To help with a poll worker shortage, 135 members of the National Guard went through poll worker training; Gov. Ricketts also waived a state law requiring that poll workers live in the county where they serve. COVID-19 precautions, made on a county-by-county basis, included supplying poll workers with PPE and regularly cleaning polling places, as well as encouraging voters to wear masks while at the polling station. For the first time ever, early ballot request forms were also mailed to every voter in the state. Statewide, voter turnout stood at 40.5%, up from 26.9% in 2016. This heightened turnout was supported by the dramatic increase in mail-in and early voting, which some sources suggest accounted for 80% of the total this year.
NY: Though some local special elections were canceled, primary elections for state and local office will proceed as planned. A federal judge ruled that the June 23 primary must be held as planned. New York will allow eligible voters to vote via absentee ballot.
WA: The 2020 primary elections in Washington took place as scheduled on March 10. This was 10 days after Gov. Inslee declared a state of emergency for COVID-19 and nearly two weeks before the stay-at-home order was imposed. Since Washington state already votes entirely by mail, no special arrangements needed to be made (although authorities did discourage voters from licking the envelopes of their mail-in ballots). Turnout for the presidential primary was 49.56%, up from 34.78% for the last presidential primary—a significant increase that may be attributable (at least in part) to the fact that the 2020 primary was held two months earlier than the 2016 one and was therefore more competitive.
WI: Wisconsin is an outlier among states in that Wisconsin held its presidential primary voting in person on April 7, 2020, during the height of the COVID-19 outbreak, instead of using absentee methods or postponing the vote. This decision was reached because Wisconsin state courts determined that voting was an essential service. Unfortunately, that decision to maintain in-person elections came at a cost: “More than 50 people who voted in person or worked the polls during Wisconsin's presidential primary this month have tested positive for COVID-19.” A study conducted a month after the elections concluded that “Wisconsin’s controversial decision to hold [...] in-person primaries on April 7 led to a ‘large’ spread of coronavirus.” Due to the increase in COVID-19 cases, the Wisconsin Elections Commission urged the use of absentee voting for the special election for Wisconsin’s 7th Congressional District on May 12, 2020.
NE: Local elections were conducted concurrently with the primaries for national-level office discussed in Q17 on May 12.
NY: Local elections including upcoming primaries have been decided to proceed as planned.
WA: Local elections were conducted concurrently with the primaries for national-level office discussed in Q. 17 on March 10. A special election took place in February prior to Gov. Inslee’s declaration of a state of emergency at the end of the month and was thus unaffected.
WI: Though elections in Wisconsin have been maintained in-person, there is still an absentee ballot option. In preparation for the upcoming fall elections, the Wisconsin Elections Commission “has approved spending $7.2 million in federal CARES Act funding, including a $4.1 million block grant program to help local election officials and voters prepare for Fall 2020 elections amid the COVID-19 pandemic.”