Arizona Senate Aims at Trimming Governor's Emergency Powers
By Howard Fischer
Capitol Media Services
PHOENIX -- State lawmakers took the first steps Monday to trim the powers of the governor -- this one and all successors -- to enact and enforce unlimited emergency orders
On a party-line vote, members of the Republican-Senate Government Committee approved several measures to require governors to get legislative approval once they declare an emergency. In each case, the failure of lawmakers to ratify the action within a certain number of days would end the emergency powers.
"Our government isn't set up as a monarchy,'' complained Sen. Kelly Townsend, R-Mesa. "We are not subordinate to the executive branch.''
Townsend said she believes that Gov. Doug Ducey overreacted with the restrictions he put in place last year due to the COVID-19 outbreak.
What happened, she said, is that some bars in Scottsdale allowed customers to act recklessly, with people packed in and dancing in a way that would spread the virus. But Townsend said the governor put in place lockdowns that affected everyone from Page to Bisbee.
"It was just an arbitrary and capricious decision that had no input from us,'' she said.
But Sen. Jamescita Peshlakai, D-Window Rock, said she's not convinced that adding 90 legislators to the decision-making process will improve management of the pandemic. And she's particularly skeptical about adding this current group of lawmakers, many of whom she said do not believe there is a pandemic, to the decision-making mix.
"And a lot of them can't even keep a mask on their face,'' Peshlakai said.
Sen. Michelle Ugenti-Rita, R-Scottsdale, however, said this is not about stripping the governor of the power to declare an emergency. That would remain.
Instead, it gives lawmakers "a seat at the table'' when deciding, after the immediate crisis passes, to review what the governor has done and, as appropriate, determine whether a different course of action is appropriate.
"It's bringing back a balance of power,'' she told colleagues. "I don't know why you would handicap yourselves.''
Sen. J.D. Mesnard, R-Chandler, was more blunt about why he believes there need to be some checks on the governor's power. He said there seems to be a belief that anyone with emergency powers won't hang on to them any longer than necessary.
"That's just a fallacy,'' Mesnard said.
"Under that line of thinking there is no purpose to checks and balances because it's all so obvious that there is not need for a check,'' he said. "You don't want to let the cook run away with the kitchen.''
Most of the measures would have no immediate impact.
In fact, in a bid to avoid a gubernatorial veto, they were crafted as constitutional amendments that would go on the 2022 ballot. So the earliest the restrictions on future emergencies could take effect, assuming voter approval, would be the end of next year.
But lawmakers also took aim at Monday the current emergency, using the little bit of power they already have to end it.
Under the current law, an emergency continues until the governor decides it is no longer necessary or until both the House and Senate, by a simple majority, decide to override that action. SCR 1001, approved by the panel, would do just that -- assuming it gets through the full legislative process.
"We have moved past an emergency into a chronic situation that needs to be handled in a different way,'' Ugenti-Rita said.
Ducey declared the emergency on March 11. Since then he has issued various orders dealing with everything from what hours individuals can be on the streets to how many customers certain businesses can serve.
"No one's articulated when this may end,'' Ugenti-Rita said. And she said her constituents have had enough.
"They don't want a new normal,'' she said. "They want to go back to the way it was.''
But Democrats on the panel said the action, even if legal, is premature.
"When did we get over this emergency?'' asked Sen. Juan Mendez, D-Tempe.
And Peshlakai said the evidence is that the underlying problems still exist.
"People are dying right now with no one to hold their hands,'' she said. "We are burying people at record rates.''
Ugenti-Rita did not dispute the effects of the pandemic and even the possible need for some government action.
"But doing it under an emergency order is no longer the responsible thing to do,'' she said. What's needed, Ugenti-Rita said, is a more "holistic'' approach, dealing not just with the disease but effects of restrictions, like depression -- and doing it with legislative input and consensus rather than gubernatorial fiat.
"You cannot handle a chronic situation with short-term solutions,'' she said. "And shutting schools and businesses down is a short-term solution.''
Ducey has told Capitol Media Services he's willing to listen to ideas to "improve'' the laws in light of the fact this is the first time they were invoked due to a pandemic. But the governor drew a line in the sand at ending the current declaration.
"We're still in that public health emergency,'' he said. "That's why state law and the constitution provide for executive emergency authorities in situations like that.''
Only thing is, it doesn't really matter what Ducey thinks.
That's because SCR 1001 which would terminate the current emergency needs only a majority vote of both the House and Senate to take effect. There is no possibility of a gubernatorial veto.
Still, Ducey believes it's a bad idea.
"We're still in that public health emergency,'' he said in his interview with Capitol Media Services. "That's why state law and the constitution provide for executive emergency authorities in situations like that.''
And there's something else.
Arizona law allows cities and counties to declare their own emergencies. But Ducey's own order declares that they cannot do anything he does not approve.
In fact, it is that preemption that a judge in Pima County cited last week in overturning the decision by the Board of Supervisors to impose a local curfew.
Ducey, in his State of the State address, warned legislators that as much as they may not like what he's done, they might be even less pleased if they strip away his authority which would let each city and county do what they want.
"I've been entrusted by the people of Arizona with this responsibility,'' he told legislators in his State of the State address. "I'm not going to hand over the keys to a small group of mayors who have expressed every intention of locking down their cities.''
But Townsend said that might be preferable to have the kind of one-size-fits-all rule that exists now.
"I disagree with Tucson,'' she said, referring to efforts by Tucson and, later, Pima County, to impose a curfew.
"The people in that area want that and believe that's what's necessary in their area,'' Townsend said. And she said they should be free to do that, unfettered by a statewide emergency declaration that preempts local control.