North Carolina’s Stand against Emergency Tyranny

C rises often reveal unknown problems. The coronavirus pandemic was no different. At the national level, it revealed significant problems with the Centers for Disease Control and Prevention and the federal bureaucracy in general. For states, the pandemic laid bare the expansive emergency powers held by governors.

Now, at least one state is trying to do something about it. North Carolina passed rules, which took effect January 1, that will curb its executive’s authority in future emergencies.

To understand the importance of this point, we must dig a little deeper into the problem. First, governors across the country declared states of emergency in response to the pandemic. Then, they then took extensive, unilateral actions that included closing businesses and schools and mandating the wearing of masks. As time went on, many of these state executives continued, and even expanded, their mandates. When state legislatures and other government officials disagreed with these actions, they often had little recourse. Over the decades, laws have been passed that granted vast decision-making authority to governors to declare emergencies, regulate in reaction to them, and enforce those regulations against private persons. Few curbs existed: “Emergency” was not defined clearly, and legislatures and other governmental bodies weren’t given a concrete role in such policy-making.

Even for those amenable to the pandemic responses, what happened should be cause for concern. We have governments of laws, not of human beings. Laws define the scope of actions available to officials and provide a standard by which we can restrain our government and hold it responsible. By these limits, we keep government from violating our fundamental rights to life, liberty, and property. When laws are overly broad (or too vague), the essential reason for having statutes in the first place is undermined.

Moreover, our system maintains the rule of law by dividing up distinct governmental functions into different branches. The executive is tasked in this system with enforcing existing laws, not making them. James Madison, in Federalist No. 47, notes that combining the powers of lawmaking and law-enforcing is the very definition of tyranny — it allows those doing both to “game” the system, reward friends, and punish enemies. It also permits the law to reflect one person’s views rather than the deliberative process envisioned by America’s Founders.

North Carolina’s new rules still permit the governor to declare an emergency unilaterally. This continued allowance is wise. As our Founders also argued, we have a unitary executive at the national and state levels in part because of the threat posed by emergencies that cannot be anticipated. Dire circumstances often require quick, decisive action that can’t be provided by legislative (and judicial) bodies. The lack of a single actor who can respond quickly threatens the health and safety of the people in the case of a real emergency. At the same time, this unilateral power needs to be temporary. North Carolina’s governor extended the pandemic-induced emergency powers for more than two years, turning a temporary condition into a perpetual one and fleeting powers into long-standing ones. This error was repeated by other governors across the country.

North Carolina now requires a majority of executive officials to agree to continue the emergency declaration after the first 30 days and demands that the legislature approve any extension beyond 60 days.

Yet these limits shouldn’t be the only response. Laws should seek to define emergencies in a clearer fashion, while still recognizing that we can’t anticipate every potential future concern. But these limitations are a solid start.

Good for the people of North Carolina. They saw a problem that the pandemic response revealed. Let’s hope this is a step toward not repeating the mistakes of 2020 and 2021 — and protecting our liberty in 2023 and beyond.