Virginia Disaster Law is Fatally Flawed

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.

There are currently no comments highlighted.

23 responses to “Virginia Disaster Law is Fatally Flawed

  1. A virus has mass, hence potential and kinetic energy, so one could argue…

    You are correct, a general inclusion of NBC is in order. Under your understanding of the law, i.e., pandemic is not a large kinetic event, so nether then would be a release of Kepone, or a Chernobyl event at North Anna, or Surry.

    BTW, good job with the page break

  2. § 44-146.14. Findings of General Assembly.
    (a) Because of the ever present possibility of the occurrence of disasters of unprecedented size and destructiveness resulting from ….or other natural causes, and in order to insure that preparations of the Commonwealth and its political subdivisions will be adequate …. to protect the public peace, health, and safety, and to preserve the lives and property and economic well-being …”

    “Natural causes”and “health and safety” seems to be enough to implicitly include deadly pandemics. You cannot list every possible disaster. Perhaps, “including, but not limited to,” is all that is necessary.

    • I think you are correct about the failure to list pandemic. It can easily be inserted, but the general language will suffice. I have made the appropriate revisions above.
      But the rest of the flaws remain. The failure to include either General Assembly participation or time limits in the restriction of constitutionally guaranteed personal freedoms makes it particularly vulnerable.
      Finally, even if the current law could pass muster in state and federal courts, a risk filled proposition, we would be better governed by a combination of the executive and the General Assembly than by the executive alone. The general unrest in the population about those restrictions would be at least tempered if their local representatives had a voice, and the Governor would have the broad range of advice he clearly needs.
      Take the Richmond example. Closed, opened and closed again by the Governor in the same week. How would any of us like to own a small business there? They recalled staff, stocked up, and then had to cancel all of that.

    • Thanks for your comments. The work to review the U.S. and Virginia constitutions, Virginia law, federal and state case law and the laws of other states to get ideas of how to do it better is very difficult and time consuming.
      – It appears to me that Virginia law will not stand up to court tests.
      – I also don’t think it is the right way to govern even if found constitutional. I think 2/3 of each house of the General Assembly will agree by now. That is what it will take to override what I presume to be a veto by the Governor.
      – I understand my work is not definitive, but I hope it is a reasonable start.

  3. Brilliant! Jim, your thinking here is about three steps ahead of what anyone else is thinking. I certainly wasn’t thinking in these terms. And even if one chooses to quibble with particulars, there can be no doubt that you have raised fundamental issues that need to be debated and acted upon. Well done.

  4. Actually, on the Federal level in the events of weather, fire, and earthquake disasters, I would NOT place operations under FEMA. I would opt for immediate command to fall to the USCG, complete with the authority to press into service any needed military assets under a CG ADM. For the first five days at any rate, it’s always a SAR mission, and they are the best. If some dolt had left the CG in the Treasury, this would have been a perfectly legal approach.

    By the same token, for state level disasters, once the governor declares a state of emergency, perhaps command in the area should pass to the superintendent of the state police and sheriffs.

    • For a period of tim, at least. But placing disaster recovery under control of a body of elected officials is the best way to maximize chaos and death. Single point of command.

    • Incident command is entirely different that political leadership. There is a long standing competition between police and fire departments over who is in charge at the scene of a local emergency. The foundations of the Incident Command System came from the fire fighting community. In most communities other than very large cities, the fire departments have more rescue assets, especially technical rescue, and hazmat capabilities than do the police or sheriffs. We must always remember that emergency response is first the responsibility of local governments. The state and federal governments are in support, and assume a degree of control only to the degree that local governments cannot or may not do certain things. In the Incident Command System, a Unified Command is an authority structure in which the role of incident commander is shared by two or more individuals, each already having authority in a different responding agency. As one example, in a hypothetical terrorism incident, the FBI is responsible for dealing with violations of federal law and leads the LE response and the local fire chief is responsible for rescue and mitigation supported by FEMA and the state.
      Nothing I have written in the post has anything to do with incident command.

      • Sure, when the disaster is confined to a single jurisdiction. But hurricanes don’t respect city lines.
        More to the point, if someone in Poquoson died from Ebola, it would not be unreasonable for the governor to declare a SoE , an I wouldn’t say a word if the State Police locked it up like a Mosler.

      • There was a fire at TI’s semiconductor plant. The Dallas FD showed up. Once they saw the list of chemicals involved, they left. Training is a many leveled thing.

  5. Is it safe to say that the founding fathers also did not consider pandemic and failed to make provisions for it in the Constitution (both US and Virginia)?

    And.. further, the lawmakers themselves also did not consider pandemic?

    We do have a Constitutional process for fixing either or both. Correct?

  6. The constitutions do not go far enough into the weeds to consider pandemics. Constitutions limit government and describe its organization, responsibilities, authorities and duties.
    It is the Virginia laws that are in question. I have pointed out the flaws in those laws. I have prescribed constitutional ways to improve them.
    Virginia laws for dealing with emergencies show more than anything else a failure of imagination, either of the potential time period covered by a pandemic, the practical outcomes of one man rule or of the constitutional challenges to laws that delegate the powers of the General Assembly to the Governor in a completely open-ended way.

    • I dunno. For all the furor here, is this REALLY “in the weeds”?

      I mean – we’re talking about “fatal flaws” in the CONSTITUTION which supposedly was a carefully drawn document. They had pandemics back then so it’s a real question whether or not they made a mistake.

      You say one man rule – didn’t the framers of the Constitution recognize that when they set the parameters?

      I dare say that “flaws in the Constitution that need to be fixed” has been uttered before and it did kick off the standard process for amending the Constitution. If we say that process is wrong and we want a new way to make changes, why does that mean and if we do that, will that set a precedent for doing other changes that way?

      • I never mentioned fatal flaws in the constitution, and I don’t think there are any. There are fatal flaws in two laws that were written that may be found to violate the constitution, either of Virginia or the United States or both. Those laws can be changed the same way they were passed, by majority vote in both houses and signature by the Governor, or, if vetoed by the Governor, by 2/3 vote in each chamber.

        • So, the emergency powers is not addressed at all in the Constitution(s) ? How about when Lincoln suspended habeas corpus and Roosevelt during WWII?

          How would you define the difference between regular “emergencies” and longer-term – just by length of time or by the type of emergency or what?

          When you say: ”
          The law did not provide for a General Assembly role in confirming or rejecting executive orders that restrict constitutionally guaranteed freedoms.”

          is this for ANY “emergency” or just pandemic types?

          this DOES sound like it IS a Constitutional issue…

          is it currently already “un-Constitutional” to restrict freedoms in emergencies to start with right now?

          are these “emergency laws” themselves “un-constitutional”?

          • Good questions. The Lincoln and Roosevelt suspensions of liberties were defended under war powers. There has been no declaration of war here.

        • Lincoln’s ignored the Supreme Court overturning his Habeas corpus writ and was legally admonished for it 5 years later (in death who really cares).

          Koremastu v US was corrected 40 years after the fact, and when asked if he saw any need for the Court to delve further into interment Justice Breyer said we now have stronger traditions of Civil Liberties.

  7. Virginia’s General Assembly has the goal of monopolizing power without taking accountability for results. They are perfectly happy to sit back and let King Ralph be dictator. He’s the perfect patsy for any problems. He makes all the decisions and he can’t run for reelection. If the General Assembly voted on the restrictions they would become accountable for the results of those decisions. Their constituents would see how they voted. No future in that.

    By the time of the next Virginia election cycle in 2021 we are likely to have been through almost two years of economic misery. The further the General Assembly can distance themselves from that misery the better for them.

    Democracy be damned. We don’t need no stinkin’ republic.

    Virginia’s constitution needs to be completely re-written.

    • D.J., my research did not find that the constitution of Virginia needed to be revised, but rather that laws needed to be changed.
      Rewriting of the laws to a version that I have recommended is constitutional under the current Virginia constitution.
      The changes are not only constitutional in Virginia but appear necessary under the U.S. constitution, which under the supremacy clause has precedence .

    • I share your concern about whether the General Assembly wants this responsibility. I intend to find a sponsor for a change bill that will make them vote to pass or not to pass the legislative changes that I have recommended. That will unmask the ones who are content to let the Governor rule by decree. If it doesn’t pass, then the Governor can press on without having to deal with the sniping from the members of the GA, left, right and center, who challenge his decisions today.

  8. bring on the GOP savior! snicker…

Leave a Reply