No Expiration Date on the State of Emergency

Back on June 12, Governor Ralph Northam declared a state of emergency to combat the COVID-19 virus. The declaration had an expiration date. Executive order 51 stated that the state of emergency “shall remain in full force and in effect until June 10,” unless “amended or rescinded by further executive order.”

Two days ago, the Governor issued Executive Order 63, which mandated the wearing of face covering while inside buildings. Not surprisingly, media attention focused on the mask mandate. But the tail end of the executive order contained this language:

This Order is in furtherance of Amended Executive Order 51 (2020) and Amended Executive Order 61 and Amended Order of Public Health Emergency Three (2020). Further, this Order shall be effective 12:00 a.m., Friday, May 29, 2020, and shall remain in full force and effect until amended or rescinded by further executive order.

Key words: “Shall remain in full force and effect until amended or rescinded by further executive order.” There is no expiration date.

Make of it what you will.

(Hat tip: Chris Braunlich.)

— JAB

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52 responses to “No Expiration Date on the State of Emergency

  1. James Wyatt Whitehead V

    Even Twinkies have a shelf life of 25 days. I always believed the legend of Twinkies lasting for decades.

  2. The EOs have become (perhaps always were?) a “big deal” especially on the right.

    And everybody and their dog has become a legal eagle!

    And perhaps questions about the limits of power and authority should arise from time to time and be adjudicated but it’s also clear there are big differences of opinion even on what the existing law and Constitution(s) mean.

    No law or Constitutional provision or even court decision though is going to be accepted by all and that’s where we are right now.

    Now about those Federal EOs…….. 😉

    • The abuse of EO’s knows no party or end. In short an EO can only augment the enforcement of Law, as it’s legal hold only last as long as the person who signed it remains in office.

      However it’s become a belief that it can be used to draft Law that otherwise doesn’t exist. That is both wrong and an abuse of power on all parities involved.

    • Larry, Not a single presidential Executive Order has infringed upon constitutional rights. Before you answer, look it up. I did. Guidelines are not Executive Orders.

      • Well, they’ve never been challenged or ruled by courts to be unconstitutional which would be the same for Virginia and other states also, right?

        Wouldn’t the POTUS also be able to declare a pandemic emergency with no ending date with the same reason that Congress never limited it either?

        # President Total Executive Orders
        42 Bill Clinton 364
        43 George W. Bush 291
        44 Barack Obama 276
        45 Donald Trump 151

  3. It will remain in effect until the GA convenes and doesn’t address it, from that point it will remain in effect until his term expires.

    It appears, a Caesar is what we have.

    • That is entirely because when the GA wrote the laws we are governed under in this emergency, they lacked both the information and the imagination to consider a the implications of the laws they wrote giving the Governor unlimited authority in a pandemic. That is one of the most severe limitations of our very part time General Assembly in Virginia.

  4. The Governor should call the General Assembly back into session even if operated remotely.

    Article IV, Section 4 provides: “The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.”

    The Supreme Court has stated: “By the constitution, a republican form of government is guarantied to every state in the Union, and the distinguishing feature of that form is the right of the people to choose their own officers for governmental administration, and pass their own laws in virtue of the legislative power reposed in representative bodies, whose legitimate acts may be said to be those of the people themselves; but, while the people are thus the source of political power, their governments, national and state, have been limited by written constitutions, and they have themselves thereby set bounds to their own power, as against the sudden impulses of mere majorities.” Duncan v. McCall, 139 U.S. 449, 461 (1891).

    • Should and must are two different things. Under Virginia law, the state of emergency exists until June 30, 2021 unless reminded by the Governor, at which point he can renew it. The General Assembly has given themselves in law no authority to rescind it, except by passing a law with majorities sufficient to override a veto. That raises the question of special session.

      By the constitution of Virginia, Article IV.,

      “The Governor may convene a special session of the General Assembly when, in his opinion, the interest of the Commonwealth may require and shall convene a special session upon the application of two-thirds of the members elected to each house.”

      The General Assembly, being more concerned with lesser things, has never written a law that controls how the 2/3 majority of the members of each house required for that “application” shall be counted.

      Indeed, the laws of Virginia (§ 2.2-3707.01. Meetings of the General Assembly) provide that:
      “D. No regular, special, or reconvened session of the General Assembly held pursuant to Article IV, Section 6 of the Constitution of Virginia shall be conducted using electronic communication means pursuant to § 2.2-3708.2.”
      Catch 22.

      The GA can “apply” to the Governor for a special session, but they may not be able to conduct electronically the survey of members to determine the 2/3 majority exists and under current law, certainly cannot convene electronically.
      The GA simply lacked the imagination to make those provisions.

      • Update: GA apparently approved electronic voting in an emergency in the recent veto session. That change does not yet appear in the code. The Senate has said it is not going to convene that way.

  5. James Wyatt Whitehead V

    Sic Semper Tyrannus might need an update. Perhaps this one will work?

    Caesar Autem, Caesar In Aeternum.

    I might have the conjugation wrong.

  6. Just curious – Hogan did the mask thing before Northam, right? Did he get the same pushback in Md?

    • Gov. Hogan instituted the mask mandate in April, being a mandate it was still wrong, but at least it was put out a month after the shutdown.

    • Yes, there was some pushback but not as much as I am hearing in Virginia. But then again Maryland has been much harder hit by COVID19 (in deaths per 100,000) than Virginia and the majority of residents of Maryland live in urban areas hard hit by COVID19 (Baltimore and the DC suburbs). Virginia is a more diverse state with areas like Hampton Roads under the average for COVID19 impact.

      However, as I have said time and time again – the spread of COVID19 from the epicenter in New York City has been pretty much along the high density areas along Rt 95 going north and south. Fairfax County is getting pretty well pounded right now. Will the spread continue to Richmond? Quite possibly.

      Fairfax County has 243 of Virginia’s 1,171 COVID19 deaths. That’s 21% from a county with about 12% of the state’s population.

      Lockdown, reopening – the virus continues to spread.

      • is interesting – Hogan is not that different than Northam on the COVID19 policies.

        Md has rural also – Eastern Shore and Western Md… Are they on Hogans butt?

  7. Well, maybe he could issue an EO declaring the virus “just gone away”

  8. Interesting… Exactly what is the Emergency..
    For those with short memories it was we didn’t want to overwhelm Healthcare system… Mission Accomplished…
    So Again… Someone please spell out what the emergency IS….
    Obviously it’s not limiting deaths; because if we wanted to limit deaths we would immediately make smoking illegal… We might even force fat people to lose weight so they wouldn’t get Type 2 diabetes which makes one more likely to die from CV…

  9. We were successful in not overwhelming the hospitals because of significant restrictions that did harm the economy.

    If we loosen restrictions to re-open the economy, do we risk a rebound that will put us back in the same position of threatening to overwhelm the hospitals?

    That concern is shared by a large number of epidemilogists – the same ones that warned us to put restrictions in place originally.

    What is happening is that people are tired of it and want to get back to the way it was before an politically, it was not tenable to stay locked down so they relented – but not without the same concerns.

    This is not one or two yahoo Mayors or Governors or epidemiologists – this is a large number – a huge majority that share this concern.

    • Mussolini made the trains run on time. There is clearly a time for quick and unilateral action in the face of an emergency. But as time progresses, the justification for continued unilateral action diminishes. We’ve seen Congress, for example, pass COVID-19-related legislation. We’ve not just relied on executive orders. Why is the Commonwealth different?

      It’s time for the Virginia General Assembly, with all its countless warts, to reconvene and “pass [Virginians’ own] laws in virtue of the legislative power reposed in representative bodies [the Senate and House of Delegates].

      • This is not about a dictator – it’s a simple thing. There is a significant concern that the virus could get out of control and turn into contagion.

        There are few situations where Govt must act and if it does so too strongly – it can back off but to not act strongly enough and have the virus run wild – would be irresponsible.

        what we have is folks who doubt the potential of the virus who then want to turn it into a political issue… and that just demonstrates how bad the politics has become – we’re willing to risk a disease to run rampant to make a political point.

        • Not a political point but a constitutional one. If Congress can act during the pandemic, so can the General Assembly. Ditto for the Fairfax County Board of Supervisors. And the last time I looked, the Democratic Party had a majority in both houses of the General Assembly. I want my senator and delegate to vote on the laws that govern the Commonwealth. And they should be looking at the budget as well.

          • Whether they can or will act is not an excuse for the Gov or the POTUS taking action if they don’t. Keep in mind that whatever those bodies do – they can be vetoed and require 2/3 or 3/5 to override.

            In the absence of them acting – the control remains with the current leader.

            otherwise, what is being advocated is a kind of anarchy which says that the GA/or control SHOULD act and if it does not then the power and authority is not valid.

          • TooManyTaxes

            Small p politically, Northam (and likely other governors) have reached the end of the road on governing by executive order. They need to bring their state legislatures back into operation to authorize and limit powers. The executive does not make law in the American system.

            “That to secure these rights [life, liberty and the pursuit of happiness], Governments are instituted among Men, deriving their just powers from the consent of the governed.” Bring back the General Assembly with all its warts.

          • If this issue had been brought up by the GOP with respect to EOs in general including hurricanes and snowstorms – it would have been righteous.

            There are actually some states out there right now that have GOP majority GA and GOP Governors. Where are the changes in those states if this is really small p political?

            Got a GOP Gov in Fl and GA and GOP majority GA’s where the beef?

            See if the GOP were actually doing this in the states where they have majorities and the Governorship – they’d look righteous but if they do nothing in those states but agitate in states like Va, what does that mean?

          • See my reply above. The General Assembly never wrote laws to give themselves any role in emergencies.

  10. James,
    Considering your “Wear the Mask” editorial yesterday, how long would the order have to be in force before you would consider that it ceases being, in Thomas Jefferson’s words, “sufferable”. Yesterday a candidate for president of RPV issued a call for massive civil disobedience regarding this executive order. Interestingly he is a proponent of voluntary mask wearing in public.

  11. I wrote Senator Norment about my concerns that the emergency law was too broad. He replied that the Republican leadership has asked the Governor three times to call a special session. Only the Governor or two thirds of both houses can call a special session.
    If you’re interested, you can read my letter and the full response here;
    https://brownhound.blogspot.com/2020/05/letter-to-my-state-senator.html

    • Well done JustJohn!

      LarryG – you want to see a dictator in action … there it is. Not only assuming dictatorial power but refusing to bring the legislature into the decision making loop. Virginia is no longer operating with as a republic as required by the US Constitution and, it seems to me, the illegitimate edicts of the governor can be refused.

      It’s time for Virginia localities to stop enforcing the unconstitutional edicts of King Ralph.

    • See my comment above on a similar issue. The General Assembly has in law boxed themselves out of a role in any emergency.

    • James Wyatt Whitehead V

      Norment and company should consider meeting at St. John’s Church in Richmond without the Governor. That is exactly what the House of Burgesses did in April of 1775. It was here that Patrick Henry delivered the famous “Give Me Liberty or Give Death!” speech. This meeting helped to shape the minds of Jefferson, Washington, Mason, Wythe, and Peyton Randolph. It is disconcerting that Northam has rebuffed the call to reconvene the General Assembly not once, not twice, but three times. I think the public would be served well to get every member of the General Assembly on the voting record right now.

      • So are those calls to reconvene, bipartisan – i.e.have support from both sides of the aisle?

        If they are, I’d concur, but not at all convinced that these calls reflect what most Virginians concerns.

        Is this just a GOP trying to use the pandemic as an election strategy?

        How many other states have reconvened their legislators – even GOP-controlled states – to address pandemic related issues with respect to the authority of the GOv?

        • Larry, I must remind that constitutional rights are not subject to polling.

          • Oh I totally agree and that also goes for folks who say they know what is Constitutional or not – and then tell others what they think!

            The problem you got here is that you and others think you know what is Constitutional or not according to your own reading and understanding and that’s just not necessarily the case.

            And why all for the legislature to meet if it is a Constitutional issue that is the purview of the courts?

            Finally, if we had other states legislatures actually reconvening AND reaching agreement with the GOv on restricting their powers – especially those states that have GOP legislatures and GOP Gov – then we could say it was truly a nonpartisan approach. When you only have one political party calling to reconvene and it’s not the party of the Gov then how do you claim it’s non-partisan? Are there any TRULY non-partisan efforts where the Gov agrees that his/her power needs to be reduced?

        • James Wyatt Whitehead V

          Mr. Larry I sure hope the GA is bipartisan about reconvening. Certainly both sides are considering the election politics of such a move. Maryland is not in session although I think some would like the chance to override some Hogan vetoes. North and South Carolina are in session. Mississippi extended their session. Not sure about WV, I think no. Kentucky is in session. Tennessee is having a session waltz on Monday.

          • Which ones are not already in session but reconvening and doing so in a non-partisan basis to specifically address the powers of the Gov in a pandemic – and the GOv agrees?

            I would posit that where BOTH parties AGREE to reconvene specifically to address the Gov powers during a pandemic are truly legitimate and more so if the GOv agrees.

            But evenif the Gov does not agree – if the reconvene is truly bi-partisan, then yes it’s legitimate.

            What’s NOT legitimate are efforts that are clearly partisan.

            my view of course… and I do respect yours.

          • James – here’s a pretty good summary of what the State legislatures are up to now:

            https://www.ncsl.org/research/about-state-legislatures/coronavirus-and-state-legislatures-in-the-news.aspx

            I found one on a quick check:

            ” Kansas
            Legislature to reconvene May 21 for one day, likely to consider limiting emergency executive authority. (5/7/2020)

            then:
            Less than a week after the Kansas Legislature passed sweeping legislation limiting Democratic Gov. Laura Kelly’s powers to manage the COVID-19 pandemic, Kelly announced Tuesday that she had “no choice” but to veto the bill.

            What legislators passed last week, Kelly said, would have “long-standing consequences for the people of Kansas.” While saying she supports certain parts of the bill, Kelly concluded it causes more problems than it solves — and ultimately limits the state in its ability to respond “aggressively” to the pandemic.

            Kelly also said she has “grave concerns” about the constitutionality of the bill, as both Republican and Democratic lawmakers had been told by legal counsel that all legislative work had to be completed by midnight on May 21. The bill reworking the state’s Emergency Management Act was passed after 8 a.m. on May 22.

            Because state lawmakers adjourned the legislative session on May 22, they do not have the ability to override Kelly’s veto. A special session of the legislature functions independently of anything that happened in that year’s session.

            The bill passed in an overnight session by the Kansas Legislature was meant to shield businesses and health care providers from coronavirus-related lawsuits and take control of the state’s pandemic response from Kelly, including decisions about how to spend $1.25 billion in federal relief funds from the March CARES Act stimulus. Of particular concern to Kelly, though, was that it also limited local health officials’ ability to respond to the crisis — a policy Kelly called “unconscionable”.

            The vetoed bill also would have extended the state’s emergency disaster declaration through May 31. As a result of Kelly’s veto, that declaration now expires at midnight Tuesday.

            Kelly’s plan to gradually reopen the state economy through a series of executive orders also expires with the current state of emergency declaration. Going forward, counties in the state will have the option to comply with the plan or issue their own local orders, rather than following executive orders from the governor’s office.

            In other words, Kelly’s veto takes the power to manage the reopening process out of her hands and places it in the hands of local officials — a frequent request of Republican legislative leaders during the initial stages of the pandemic.

            Now, that decision of whether to comply with that plan, or speed up the reopening process, is up to each of Kansas’ individual 105 county health departments.

            Douglas County’s Unified Command has agreed to adopt Kelly’s Phase Two in a local health order, according to a Tuesday night press release from Lawrence-Douglas County Public Health. Phase Two limits gatherings to 15 people and requires some at-risk businesses to stay closed.

            The local health order, issued by Douglas County Health Officer Dr. Thomas Marcellino, will take effect at 12:01 a.m. Wednesday.

            “This gives people of Douglas County the message that we’re going to stick with the current public health measures to guard against the spread of COVID-19 as part of a phased reopening, and we think it’s a good plan that is working in our area,” Marcellino said in the release.

            Phase Three of the Ad Astra plan, scheduled to begin June 8, would have expanded the gathering limit to 45 people and allowed nearly all activities and businesses to open as long as they practiced social distancing. Douglas County’s leaders will release any restrictions for Phase 3 under a local health order before June 8, the Tuesday night release noted.

            Kelly said Tuesday that she would be forced to issue a new state of emergency declaration, with focus shifted to the state’s economic recovery from the COVID-19 pandemic. Not doing so would cut off Kansas’ ability to receive any further federal funding related to the crisis, as states must be in a declared state of emergency.

            Because state statute makes it difficult for a Kansas governor to continue reissuing states of emergency for the same disaster, Kelly’s new declaration must focus on the economic disaster brought on by the COVID-19 pandemic.

            This allows Kansas to continue receiving federal funds, and allows some executive orders to be continued under the new state of emergency declaration, which Kelly’s office said she signed Tuesday.

            Finally, Kelly announced that as a result of the new state of emergency, she would call back legislators to the Capitol for a special session on June 3, with the sole focus of further extending Kansas’ state of emergency.

            The new emergency declaration lasts only 15 days, and if the legislature doesn’t extend it further, Kansas’ ability to respond at all to the COVID-19 crisis will be put at risk, Kelly said.

            “The (Legislature’s) process was messy, confusing and complicated. But it didn’t have to be,” Kelly said. “There are those who will see the actions of the Legislature, and my actions, as solely about power — who has it and who wants it. But this is not about power; it is about leadership.”

            “Being a leader means being willing to do what’s difficult and even unpopular. It means standing up for what’s right and not being bullied into taking action that would be disastrous to the people of Kansas,” she said. “That will always be my top priority.”

            — The Associated Press contributed to this story.

  12. Hear hear LarrytheG. Signed liberal, non Anglican, dog lover and former Mustang owner until the manual clutch got too much for my leg

    • James Wyatt Whitehead V

      Mr. Peter. You can borrow my 66 Mustang anytime. All original, matching factory numbers, 289 small block, and it has a “Cruise A Matic” transmission for the bum leg. Don’t worry! I converted the drum brakes to disc. Stops on a dime.

  13. I have reviewed how the various states are handling COVID emergency from a law and constitution basis. Virginia’s combination of:
    – a constitution that severely restricts the normal sessions in time and requires either the Governor to call for special sessions or the GA to request one by 2/3 majorities in each body; and
    – laws that grant the governor unrestricted emergency powers for what amounts to an unrestricted period of time, and
    – laws that prevent the GA from voting electronically, and
    – the lack of a law that provides a method of ascertaining that the 2/3 of members wish to reconvene
    is unique as far as I can tell.

  14. Jim, I understand how you form your viewpoints but is your opinion a proper legal or Constitutional opinion?

    Don’t you think there are other legal and Constitutional opinions out there?

    • I did not provide an opinion. That is just a recitation of what the Virginia constitution and the code of Virginia say and do not say on these subjects.

  15. I found this interesting:

    “The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement,” he wrote, but the Constitution principally assigns such judgments “to the politically accountable officials of the States.”

    Absent clear infringement of constitutional rights, state officials “should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people,” he wrote.

    https://www.wsj.com/articles/supreme-court-rejects-church-challenge-to-californias-limits-on-in-person-services-during-the-pandemic-11590821819?mod=hp_lead_pos3

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