Guv’s “Emergency” Powers Must Be Reigned In

“You’re not the boss of me! “ “You can’t tell me what to do!”  “Mom, he’s touching me!”

Whiny, spoiled – they  don’t care about the greater good. Immature, so juvenile, so uninformed they can’t appreciate that unlimited gubernatorial emergency powers are for our own good. All of these adjectives and taunts,  have been hurled at those of us who believe there must be a limit to the Governor’s emergency powers.  Liberals  use a very wide brush to paint those of us who are informed and understand that absolute power can corrupt, and many times does, as fringe extremists and unreasonable.

I’m not saying that Govern Sisolak did anything illegal or that he is corrupt. Unfortunately, he used his executive power  to completely shut down our state  just as surely as if he had used a padlock and then misplaced the key. And then took two years to find it.

His decision to close casinos and other “non-essential” businesses forced many small business owners to permanently close their doors and negatively impacted our children’s education not only for the last two years but for years into the future as they struggle to regain competencies.

His decision to put the state on lockdown  had immediate and severe financial impacts that we are still battling to overcome. Those same actions were also a major contributing factor to a cultural decline that has changed the overall work ethic of many Nevadans. Was he irresponsible? Is he a dastardly villain? Simple explanation? Explanation yes. Simple no, not so much.  His authorities were, and remain, unchecked; with  no accountability or oversight and partnership with lawmakers. Technically, his actions were within the parameters of  law – as it stands today.

Now that I have provided a dismal recap of the last two years, let’s take a deeper historical dive into the office of Governor in the United States and its evolution.

During the infancy of the United States, state governors were limited by the legislatures. Many times, governors were directly  appointed by the legislatures. Terms were usually shorter than today consisting of one or two years in length.  As an emerging Nation we remembered the struggles we experienced in England and were acutely aware that a balance in power was required to avoid deterioration into a like-kind government.

Eventually states moved toward the election of governors. This transition made the governor more independent of the legislative body. During the same time frame  legislatures also moved to reduce the governor’s administrative power by making more offices elected rather than appointed by the governor.

Governor appointments equate, to more power for the governor. Up until around 1850, the governor’s appointing power, and as a result his control of the administration was at its lowest point in history. Under that dynamic the governor’s position was less important than it was previously; however, on the flip side, his legislative authority was of greater importance than his administrative authority.

All of this changed in the second half of the century. John Fairlie summarized in the Michigan Law Review in 1912:

“In the period since 1850 the position of the State governor has been strengthened to a notable extent, not so much by changes in the State constitutions, as by the expansion of State administration and a considerable increase in the appointing power of the governor conferred by statute. Many new State offices, boards and commissions have been established; and these positions have been filled on the nomination of the governor usually with the consent of the senate. This increase in appointing power has added to the governor’s control over the State administration; and the increased administrative control has added to the influence of the governor in other directions.  … The general result has been to emphasize decidedly the importance of the governor’s office; although his authority still falls much short of that of the President of the United States.

Thank goodness the governors’ powers are short of that of the President.

In all of the things I have read, I think this is the most bipartisan explanation of the seemingly unbridled growth of power in the governors’ office. It truly does not seem to be limited to one party or the other. Population and community growth begets needed services. Needed services beget commissions, commissioners, departments, boards, studies – in other words, more administrative functions. Administrative controls beget appointments. Appointments begat influence and yes, influence begets more power.

In a nutshell? Increasing the number of administrative agencies and offices yields an  increase to a governor’s power. With  new opportunities to appoint political allies to  those offices, the resulting impact is significant.

Okay, the history lesson was nice but how is this generic creep of the Governor’s power stopped? Is this a Nevada specific problem?  Why wasn’t this addressed before we went through the last two years.

The fervent growth of executive power is a problem across the county, not just here in Nevada. The power of the Governor’s office breaks more along political lines and the fact that whichever political party  is in the Governor’s Mansion has no desire for change. As a whole, the legislative bodies march to the beat of the same drummer when the Governor and the legislative majority are of the same party.

Frankly, until there was a situation like COVID, I don’t know how many people really cared about the  Governor’s emergency powers and the balance of power in state government. As the shutdown of our country and the “new normal” rolled out,  states recoiled and pushed back. Calls to recall governors were in the air. Legislators passed bills to limit gubernatorial powers only to find the bills were vetoed by the same  governor. This happened in both Ohio, and  California.

Actions to reign in the governor’s emergency powers are not just limited to the state legislatures. The state Supreme courts in Wisconsin and Michigan  both handed down rulings limiting the governors’ powers.

During the height of the pandemic the Associated Press reported:

   “About half of [the 45 states considering bills to limit governors’ powers]  are  considering significant changes, such as tighter limits on how long governors’ emergency orders can last without legislative approval. …  Though the pushback is coming primarily from Republican lawmakers, it is not entirely partisan.  Republican lawmakers have sought to limit the power of Democratic governors in states such as Kansas, Kentucky and North Carolina. But they also have sought to rein in fellow Republican governors in such states as Arkansas, Idaho, Indiana, and Ohio. Some Democratic lawmakers also have pushed  back against governors of their own party, most notably limiting the ability of embattled New York Gov. Andrew Cuomo to issue new mandates.”

Nevada’s Republican Assembly members did not stand idly by as the rest of the country tried to claw a path back from the brink of economic ruin. Republican lawmakers in the Nevada Assembly also hoped  to reign in  Governor  Steve Sisolak’s emergency powers.

Assemblyman Jim Wheeler wrote a bill that would end an emergency declaration or state of emergency after 15 days unless the Legislature votes to continue it. The bill was co-sponsored by ten Republican Lawmakers and was supported by Annie Black, District 19. Let’s be real. Calling an emergency session of the Assembly to review and assist the Governor in a time of crisis should be very doable. As I remember, there was no issue doing so when money was needed for the Raiders, Hum, priorities I guess. Calm down Raider Nation – just making a point. I love you too.

Below, is the bill’s history. It was sent to the Committee on Government Affairs where it languished until it died a slow, unproductive death.

When I started this communication  I stated the growth of the powers in the Governor’s office was not  partisan. It happens with growth, however, when power remains unreviewed, and  unchecked it becomes very partisan with each party making a power grab that hurts all of the citizenry, as we recently experienced.

I believe “Heavy is the head that wears the crown.” Being the one single official, the one single, fallible human being making decisions that impact whether others have food on the table or a roof over their head is akin to a dictatorship. And ridiculous. “More heads are better than one,” is a philosophy that applies!

Democrat or Republican, we should be able to understand and embrace the concept of granting authority for immediate action that is  subject to review. I will never believe that there is not wisdom on both sides of the aisle that could  have benefitted all Nevadans subject to all parties participating in constructive, educated nonpartisan review of the decisions the Governor made. Surely there was  voices other than a few Republicans that could understand that more options needed to be considered before we came just short of destroyed our economy, damaging small business’ beyond repair, and impeding our children’s ability to  excel in school.

No single fallible, flawed man or woman has the wisdom of King Solomon. If we work within a structure that limits power without accountability ,we will come a damn sight closer.

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