U.S. Supreme Court Must Limit Virginia’s Gubernatorial Authority in Emergencies

by James C. Sherlock

Sic Semper Tyrannis

Kerry Daugherty, as is her want, posted a particularly compelling essay today. The most important thing Kerry wrote was: “Please let there be another lawsuit. And let it get to the Supreme Court…. Seems only the courts can save us from these tyrants.”

She is absolutely right.

Article IV of the United States Constitution

SECTION 4. The United States shall guarantee to every State in this Union a Republican Form of Government

From contemporaneous notes from James Madison:

“Resd. that a Republican government . . . ought to be guaranteed by the United States to each state.” 1 M. Farrand, The Records Of The Federal Convention Of 1787 22 (rev. ed. 1937).

In a letter in April, 1787, to Randolph, who formally presented the Virginia Plan to the Convention, Madison had suggested that “an article ought to be inserted expressly guaranteeing the tranquility of the states against internal as well as external danger. . . . Unless the Union be organized efficiently on republican principles innovations of a much more objectionable form may be obtruded.”

Edmund Jennings Randolph of Virginia, supporting Madison’s version pending then, said that

“a republican government must be the basis of our national union; and no state in it ought to have it in their power to change its government into a monarchy.”

Madison and Randolph were prescient.  Governors love kingly authority.

It is an ironic twist of fate that this was part of the Virginia Plan that survived into our current constitution. The sentiment also made it into the Seal of the Commonwealth.

Welcome to an “innovation of a much more objectionable form,” Under current Virginia law the Governor activates for himself the emergency authorities contained in state law by declaring an emergency. Those authorities are effectively unlimited either in scope and time, and the law does not require him ever to consult the General Assembly on exercising them.

For those who think Governor Northam’s rule-by-decree authority must surely run out at some time soon, you are wrong. This current emergency declaration runs out in May of next year, but he can under Virginia law immediately declare a new one and proceed under that declaration for the rest of his term.

State laws like Virginia’s that give the Governor unlimited authority for an unlimited period of time without participation of the legislature are, to me, clearly violations of United States Constitution clauses that guarantee each state a republican form of government.

They also permit violations of constitutionally guaranteed freedoms, which can be acceptable for a limited period of time for a specific time-limited emergency, like a flood or a riot, but cannot be open ended and capricious, like we are seeing here.

In many states, State Supreme Courts have intervened to require legislative participation and/or to reverse orders that were restrictive of personal freedoms in capricious ways.

Virginia’s Supreme Court, as we saw in its intervention to do the Governor’s specific bidding in denying commercial landlords access to Virginia courts, itself an unconstitutional act, is part of the problem, not part of the solution.

The General Assembly, to its shame, has shown no appetite for changing the current law and reclaiming its constitutional authority.

We need a clear ruling by the United States Supreme Court:

  1. finding unconstitutional a state law, like Virginia’s, that grants unlimited emergency authority to the Governor alone for an unlimited period of time; and
  2. finding unconstitutional actions by Governors, legislatures or state courts that use emergency authorities capriciously to violate constitutional rights of citizens

Only such a ruling will settle this issue in Virginia and nationally.

May it happen soon.

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14 responses to “U.S. Supreme Court Must Limit Virginia’s Gubernatorial Authority in Emergencies”

  1. ksmith8953 Avatar

    Would the GA, controlled by Democrats, make any changes to the current executive order? Maybe? Maybe not.

    1. sherlockj Avatar

      That is not the constitutional question.

  2. Dick Hall-Sizemore Avatar
    Dick Hall-Sizemore

    It is silly to suggest that the governor’s executive powers are a violation of the guarantee of a “republican” form of government. There might be a case for that argument if the governor had issued his executive orders regarding masks, closings, etc., on his own absent any statutory authority. But, there is statutory authority, Sec. 44.1-146.17 of the Code of Virginia.

    As for the participation of the legislature, that section was amended as late as 2008 and it could be argued that the amending legislation actually strengthened the governor’s powers. The legislation was introduced by a Republican delegate and passed unanimously by the Republican-majority House of Delegates. (Democrats were in the majority in the Senate and a Democrat was governor.) Bills were introduced in the 2020 Special Session of the General Assembly to limit the governor’s emergency powers. They were not passed. The General Assembly has had a chance to increase its participation in the exercise of emergency powers and has declined to do so. The legislature will have another chance in the 2021 session to limit this authority.

    Many years ago, when I first ran across this grant of emergency power, I was surprised at broad it was. I seem to remember being concerned about it. There is a legitimate argument that this authority is too broad, but to argue that the governor is depriving the citizens of Virginia of a “republican” from of government is nonsense.

    1. sherlockj Avatar

      Thanks as usual for you opinion, Dick, but it is not the Governor but rather Virginia’s law that enables him that is depriving Virginians of a republican form of government.

      It is your interpretation of what I wrote that is nonsense. You personalized it to Northam, not me. My entire post was about the authorities granted him, not his use of them.

      The law is, in my opinion, unconstitutional.

      We shall see if a Virginia case or one similar makes it to the Supreme Court.

  3. Peter Galuszka Avatar
    Peter Galuszka

    Well, you might as well throw n many others states that have anti-virus measures. I think this unneeded and it’s getting tiring reading all this chatter about Northam overstepping his plans to fight the pandemic. The death toll nationally is now 250,000 or roughly five times the American fatalities in the Vietnam War. This is very serious.
    I do not take Ms. Dougherty seriously and as Dick correctly points out, there’s not much criticism of Republic governors. Md’s Larry Hogan, a GOP guy, has taken many of the states that Northam have.
    Another reason for the need for Northam’s approach is the utter incompetence of Trump in handling the pandemic. We’re in the middle of a really big national surge and he’s busy screwing around with not conceding an election he obviously lost, tweeting away noneense and playing golf.
    Funny, very little mention of him. If it had been Obama the bloggers would be screaming.

    1. sherlockj Avatar

      See my reply to Dick above. Not a word about Trump or Obama or Northam overstepping or national politics. It is the Virginia emergency powers law that I have opined is unconstitutional, not Northam’s use of it.

    2. “I do not take Ms. Dougherty seriously and as Dick correctly points out, there’s not much criticism of Republic governors.”

      Dick made a valid point in his response to Kerry Dougherty. But it’s hard to take your comments seriously when you keep bringing Trump into the discussion. The President has a different role. You don’t seem to recognize that.

      “Under the U.S. Constitution, states retain the power to protect the health and welfare of their residents. Consequently, states have the primary responsibility for public health functions.”

      Additionally, you seem to insinuate that the worldwide pandemic would somehow have avoided the U.S. if only a Democrat were in charge. That’s pretty ridiculous.

      Trump’s criticisms of Obama playing golf may be hypocritical, but but your criticisms of him make no more sense.

      The Trump Administration took responsibility for encouraging the speedy development of treatments and vaccines. With the election now over, Democrats would do well to just admit that Operation Warp Speed appears to have exceeded what the “experts” thought possible.

      “Fact check: Coronavirus vaccine could come this year, Trump says. Experts say he needs a ‘miracle’ to be right.”


    3. djrippert Avatar

      Northam is no more competent than Trump in managing this surge. While Trump wastes his time contesting the election Northam wastes his time rambling on about court cases involving Confederate statues.

      The resurgence is raging across Virginia. I have less concern about Virginia law being unconstitutional than I have about Northam’s incompetence. Bob Holsworth puts out an excellent summary of COVID-19 in Virginia on Facebook. BearingDrift often reprints his column on their blog. Here is an excerpt …

      “In the last 6 days, the Virginia Department of Health has reported 1521, 1235, 1537, 1161, 2677, and 2125 cases, an average of 1709 cases per day. This is far and away the highest number of cases in a 6-day period since the pandemic began.”

      COVID hospitalizations in Virginia are rising rapidly and have reached the highest number since late May.

      Where is the hue and cry from the left for Northam to be doing more than taking superficial steps in the face of this raging surge? Where are the complaints about Northam ignoring the data as he revels in the fact that Virginia has the fourth lowest new case rate among states … for now. Where is the insistence on Northam following the science instead of basing his ations on images he saw on the nightly news?

      Northam is failing in this resurgence and failing badly.


  4. Peter Galuszka Avatar
    Peter Galuszka

    Ripper makes a valid point. You do not. Here’s a president who withdraws from WHO in a global health crisis, put down his chief expert, and refuses to hand over management and information of all of this to the Democrat who bet him.

    1. sherlockj Avatar

      Did you watch the white house task force briefing this evening?

      1. Nancy_Naive Avatar

        I watched Giuliani. It was funnier. The WH and Trump need to put their briefs on at 11:30 to compete with the rest of the late night comics.

        GOP — Profiles in Cowardice.

    2. “Ripper makes a valid point. You do not.”

      Mr. Galuszka,

      When you find yourself in a hole, it’s best to stop digging. Your comments are getting more and more ridiculous.

      “refuses to hand over management”

      No president in our nation’s history has ceded over management of the government prior to the new president’s inauguration and swearing in.

      In your short comment you touch on numerous points that I would be happy to discuss at length, but are completely off topic for this thread. If you should decide to submit an article about one, I will gladly comment there.

  5. James Wyatt Whitehead V Avatar
    James Wyatt Whitehead V

    I like Edmund Jennings Randolph. One of Aaron Burr’s defense lawyers in the “Trial of the Century”. John Marshall studied under Randolph. I have often wondered if that relationship played a role in Marshall’s acquittal of Burr. The true traitor, James Wilkenson, continued his scandalous behavior and always eluded punishment.

  6. Nancy_Naive Avatar

    SCOTUS hearing arguments on Gubernatorial powers and a vague law….

    Well, as Grandmother used to say, “Well boy, spit in one hand and wish in the other and see which fills up first…”

    Trump will make 270 faster, and all he has to do is lose 20 pounds.

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