by James C. Sherlock
Executive Summary
It is an urgent legal necessity to revise the Commonwealth of Virginia Emergency Services and Disaster Law of 2000. That law has never been tested in court. It has many flaws that both hinder good governance in Virginia and will be exposed as potentially unconstitutional in any judicial review.
1. The law gives the governor authority to declare a state of emergency and thus activate his or her emergency powers without any review or authority to repeal the declaration by the General Assembly, even ex post facto. That gives the authority to the governor to grant himself the powers to both create offenses by decree and to police them.
2. The law gave the General Assembly no role in emergency response, even if it is in regular session and/or the emergency lasts for a very long time.
3. 1. and 2. provide clear challenges to the Guarantee Clause (Article IV, Section 4) of the U.S. Constitutio:. “The United States shall guarantee to every state in this union a republican form of government.”
4. The law did not provide for a General Assembly role in confirming or rejecting executive orders that restrict constitutionally guaranteed freedoms. Such restrictions have far stronger chance of being upheld in state and federal courts if the General Assembly plays a role, at least ex post facto, to confirm, modify or reject such an order.
5. The law puts no reasonable time limits on either the state of emergency itself or the executive orders resulting from the emergency. Under the current law both the state of emergency and executive orders, absent action by the governor that proclaimed both, expire on June 30, 2021, at which point he can renew them.
6. The law does not make provisions to put the General Assembly in position to participate in emergency response in a streamlined, more time sensitive manner and efficient manner.
7. All of these mistakes perhaps can be shown to have resulted from the consideration of only short duration disasters such as the ones listed in the law, not a pandemic of the duration of the one we are facing.
With the arrival of a pandemic, both sides of the aisles in both houses of the General Assembly have realized that law both makes them irrelevant and makes the law itself a prime target for judicial reversal. It is time to change the law. The August special session is the venue.
Federal Case Law
National Conference of State Legislators, Separation of Powers – Delegation of Legislative Power
The U.S. Supreme Court has allowed some delegation of legislative power. In Wayman v. Southard (1825), Chief Justice John Marshall distinguished between “important subjects” and “mere details.” He wrote that “a general provision may be made, and the power given to those who are to act under such general provision, to fill up the details.
In Mistretta v. United States (1989), the U.S. Supreme Court applied the “intelligible principle” test. The Court deemed it “constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.
The only pronouncement in a majority opinion (Kent v. United States) is that, even with regard to the regulation of liberty, the standards of the delegation “must be adequate to pass scrutiny by the accepted tests.”
The standard practice of the U.S. Supreme Court has been to interpret the delegation narrowly to avoid constitutional problems. Virginia’s current law, which provides no role whatever to the legislative branch, would be hard to interpret to avoid such problems.
Virginia Case Law
I can find no Virginia case law on the subject.
Virginia Law
In Virginia law, the delegating statute Commonwealth of Virginia Emergency Services and Disaster Law of 2000 includes a general legislative statement of policy and general rules to guide the recipient in exercising the delegated power.
Governance under that law in this pandemic has proven the law at best ill considered and at worst may be adjudicated to violate the constitutions of Virginia and United States. The General Assembly made itself powerless to oversee this process and assist the Governor. Members from both sides of the aisle complain from the sidelines.
The Commonwealth of Virginia Emergency Services and Disaster Law of 2000 must be revised to provide stricter standards and safeguards and ensure the efficient and effective participation of the General Assembly in oversight of emergency orders and rules.
Commonwealth of Virginia Emergency Services and Disaster Law of 2000
1. Scope of the law
General Assembly intent for the applicability of the law is indicated in both the § 44-146.14. Findings of General Assembly and § 44-146.16. Definitions. The General Assembly clearly did not anticipate the duration of the current pandemic flu when the law was written.
Courts may look past that, but the governor and the General Assembly should not want to risk it. The recent Wisconsin Supreme Court decision that found that a department of the executive branch assumed powers that it was not delegated and threw out the entire order for social distancing.
2. Reason for delegating General Assembly Powers to the Executive:
“Emergency” means a sudden and unforeseeable occurrence or condition, either as to its onset or as to its extent, of such disastrous severity or magnitude that any occurrence, or threat thereof, whether natural or man-made, which results or may result in substantial injury or harm to the population or substantial damage to or loss of property or natural resources and may involve governmental action beyond that authorized or contemplated by existing law is required because governmental inaction for the period required to amend the law to meet the exigency would work immediate and irrevocable harm upon the citizens or the environment of the Commonwealth or some clearly defined portion or portions thereof.”
This language allows the governor to delegate to himself legislative authority by assuming every decision he makes would be delayed and the delay would work immediate and irrevocable harm if referred through the General Assembly.
Virtually every executive order issued in the COVID-19 emergency has had to be modified because the governor had not considered fully the potential objections to or outcomes of the order. Complaints from both sides of the aisle in the General Assembly have been heard from advocates for minorities, small businesses, the hospital industry, independent physicians, constitutionally guaranteed freedoms, and many others.
Instead of consulting with the General Assembly, the Governor has assembled panels of unelected citizens to help him consider executive orders, and then often ignored their inputs.
There has been no evidence that the General Assembly would have delayed such orders, and considerable evidence that that body would have helped with the quality of the orders.
The governor has assured that he is unbound and unadvised by the General Assembly by not calling it into special session for the purpose of advising, and passing or rejecting his executive orders. Under the Virginia Constitution:
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.
Neither the Constitution nor the law specifies how this “application of 2/3 of the members of each house” shall be conducted. Under current law, the General Assembly cannot meet electronically:
§ 2.2-3707.01. Meetings of the General Assembly
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.
Since the General Assembly is not in session and has no provisions for remote voting, it remains an open question how the constitutional provision for the General Assembly to reconvene on its own initiative can be complied with.
3. Existing Virginia law nowhere:
– Calls for the governor to refer to the General Assembly for joint resolutions affirming, amending or rejecting executive orders that limit freedoms protected by the constitutions of Virginia and the United States; or
– Sunsets such executive orders unless extended by the General Assembly; or
– Reasonably limits the duration of either the executive order that declared the emergency or executive orders issued under that declaration. Currently such orders expire June 30 following the next adjournment of the regular session of the General Assembly session (June 30, 2021) but the same or a similar rule, regulation, or order may thereafter be issued again if not contrary to law; or
– Indicates that the General Assembly has a role even if assembled in regular session.
Changes to the law must solve the problems listed in 3. above.
Virginia law should also reduce the possibility that working with the General Assembly would “delay action and that delay would work immediate and irrevocable harm if referred through the General Assembly”. It can do that by two new provisions:
– Form a standing Joint Committee of the General Assembly to deal with emergency matters; and
– Emulate many states that have procedures in law by which they can assemble remotely. Wisconsin, and Oregon have specific provisions in law allowing the remote or virtual meeting of the legislatures if emergencies exist. In March, April or May 2020, legislatures or chambers in at least 16 states, the District of Columbia, Guam and the Virgin Islands changed their procedures to allow for remote participation or voting. In most, if not all cases, these changes are temporary or tied specifically to the COVID-19 emergency. Virginia, of course, could not adopt such a law because the General Assembly was not in session and the governor made no move to call them into emergency session.
We urgently require a Commonwealth of Virginia Emergency Services and Disaster Law of 2020 that addresses all of these issues and creates a revised legal basis for state responses to emergencies that protects the freedom of action by the Governor while ensuring he or she is appropriately overseen by the General Assembly, especially in orders restricting constitutionally guaranteed freedoms.
It is demonstrably the right thing to do, and only a law revised in this way will be reasonably assured of passing judicial review when the inevitable lawsuits are adjudicated.
