Noble Goal, Constitutional Blunder

by Emilio Jaksetic

Del. Tony O. Wilt, R-Harrisonburg, is sponsoring House Joint Resolution 513 to amend the Virginia Constitution to limit the duration of the governor’s executive orders during a state of emergency. The bill is written in a way that needlessly accepts the notion that the governor has broad, sweeping power beyond what the office is actually granted under the Constitution.

How can a proposed limitation of the duration of the Governor’s executive orders result in a grant of broad, sweeping powers? The answer is found by analyzing HJ Res. 513 in the context of other provisions of the Virginia Constitution.

The bill fails to take into consideration the following pertinent constitutional provisions:

  • The General Assembly has legislative power.  (Article IV, Section 1).
  • The governor has executive power (Article V, Section 1).
  • The courts have judicial power (Article VI, Section 1).
  • The powers of the three branches are separate, and no branch can exercise powers of another branch. (Article III, Section 1).
  • No one has the authority to suspend the laws without the consent of the representatives of the people. (Article I, Section 7).

The General Assembly has the authority to enact civil and criminal laws — subject to any constitutional limitations — which can restrict, limit, prohibit or otherwise regulate actions by individuals and businesses. But the legislature cannot constitutionally enact any law that: (1) gives the governor legislative authority; (2) disregards or circumvents any provision of the Constitution; or (3) gives the governor authority to disregard or circumvent any provision of the Constitution.

The governor has no authority under the Constitution to enact laws, suspend existing laws, or declare lawful conduct to be illegal. Nor can the governor execute the laws in a manner that would disregard or circumvent any provision of the Constitution.

Now consider the problematic language in HJ Res. 513, which would add a new Section 7-A to Article V of the Constitution: “The Governor shall have the powers and duties related to states of emergency as provided by general law, except any executive order related to such an emergency issued by him that restricts, limits, or prohibits otherwise lawful action by a private business, nonprofit entity, or individual shall not exceed a period of forty-five days in duration without approval by the General Assembly.”  (Emphasis added.)

Any executive order that unilaterally restricts, limits, or prohibits otherwise lawful action would be (1) the de facto equivalent of the governor enacting a new civil or criminal law, (2) a de facto suspension of existing laws, or (3) a combination of both. Such law making and suspension of the law by the governor are contrary to the provisions of the Constitution cited above.

If made part of the Constitution, the problematic language of HJ Res. 513 would create a situation that could escalate quickly into a constitutional crisis.  The governor could claim the new constitutional language grants the power to issue an executive order to unilaterally restrict, limit, or prohibit otherwise lawful actions for at least 45 days, which would:

  1. vitiate Article III, Section 1 of the current Constitution by giving the governor de facto legislative powers and de facto power to make otherwise lawful actions illegal (violations of executive orders are treated as misdemeanors);
  2. vitiate Article I, Section 7 of the current Constitution by giving the governor the de facto power to unilaterally suspend laws for 45 days; and
  3. vitiate Article V, Section 7, Clause 1 of the current Constitution by authorizing the governor to take action that is inconsistent with the duty to “take care that the laws be faithfully executed.” (Acting unilaterally to restrict, limit, or prohibit otherwise lawful action is the antithesis of faithfully executing the law.)

Language in HJ Res. 513 that would allow a special session of the General Assembly to approve the extension of such an executive order beyond 45 days only aggravates the problem.

No constitutional amendment is needed to limit the duration of the governor’s executive orders during an emergency. All that is needed is for the General Assembly to amend the statutes pertaining to emergencies to explicitly limit the time period for any declared emergency, and require General Assembly approval for any extension of such a declared emergency.

Amending the Constitution to add language stating that the governor can restrict, limit, or prohibit otherwise lawful actions is unnecessary and would undermine existing provisions of the Constitution. HJ Res. 513 is a constitutional blunder.

Emilio Jaksetic, a retired lawyer, is a Republican in Fairfax County.

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8 responses to “Noble Goal, Constitutional Blunder

  1. You had the bad luck of posting on a day when all hell broke out in Washington and everyone’s attention is directed there.

    I agree with you that the constitutional amendment is not necessary. Furthermore, it is the hard way to accomplish what the legislator wants to accomplish. It would be much easier to amend the current law relating to emergency powers to place a limitation on the duration of those powers.

    I don’t understand your concern that enacting a constitutional amendment referring to executive orders restricting actions otherwise legal. The emergency powers law already provides that power.

  2. The thing I do not understand is in the emergency powers of a Governor are limited at some point, who then is in charge of responding and managing to the emergency? It has to be someone in the Executive right?

    • The limits are needed in order top keep a power-hungry governor from unilaterally extending the “emergency” past the point that it is still a real emergency. The intent is not to restrict the emergency powers themselves, but to have a well-defined process to prevent a governor from finding a way to keep those powers indefinitely.

      Presumably, if the G.A. acts to deny an extension of the emergency, it will be because there is no longer an emergency and no one will need to be in charge of responding to and managing the emergency.

      I agree that a constitutional amendment is not necessary to achieve that goal.

      • Emergencies are not “yes” or “no”. There range in scope and scale and duration.

        Who decides when, where, how, etc to set what kinds of restrictions, etc?

        The legislature can’t do that – the executive has to.

        • “The legislature can’t do that – the executive has to.”

          Up to a point he does, but in the case of a governor who wants to keep his emergency powers indefinitely, somewhere along the line it’s going to be obvious to enough people that an emergency no longer exists and that the governor is gaming the system. That would be the point when the G.A. needs to step in.

          • Seems like there would have to be a Constitutional Amendment.

            Otherwise any GA couldl conceivably exercise any judgement of what constitutes “too much” .

            The Governor is the one that directs the State’s resources in an emergency, not the legislature. Are you just going to deny the governor the ability to direct the states agencies? How?

      • I agree just amend the current law, indicate that after a defined period of time the GA must be consulted and made part of the process of emergency orders.

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