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Zeiger: A Call to Reform Emergency Powers

Following the 2016 Cascadia Rising exercise led by the Washington Military Department in preparation for a Cascadia Subduction Zone earthquake, I learned about limitations on the governor’s ability to respond to emergencies. While the governor had broad powers to prohibit activities “to help preserve and maintain life, health, property or the public peace,” he did not have the ability that many other governors had to suspend state statutes that could hinder an efficient emergency response.

In the interest of preparing for a Cascadia Subduction Zone earthquake or other emergency, I sponsored legislation to create this new flexibility for the governor to suspend statutes. There was an important condition I wrote into the legislation: if the governor sought to extend these suspensions past 30 days, the legislature would need to review them and either approve or deny extension. 

Late in the 2019 legislative session, I got wind that a House committee chair was holding up my bill and a pair of related measures sponsored by Senator Dean Takko (D-Longview). Sen. Takko and I conferred and decided to take a walk across the rotunda to visit with the committee chair and House leadership. We met, House members conferred among themselves, and they brought the legislation up for a floor vote. The measures passed with strong bipartisan support.

This sort of conferring, negotiating, and persuading is exactly what makes the legislative process valuable. People can stop bad ideas or push good ones, build coalitions, and get important things done for the people they represent.

Yet far too little of this kind of activity has occurred in state government over the past year. During the pandemic, the legislative branch has been sidelined in important respects. While the legislature has exercised its power to review the governor’s new emergency powers to suspend laws—working through the leadership of the four caucuses since the legislature was not in session—it has had no formal say in the governor’s powers to prohibit activities, as in the Stay Home, Stay Healthy order.

If the executive branch of government is designed for swift action in an emergency, the legislative branch is designed for inclusion and deliberation—legislators represent 49 diverse districts throughout the state, they hear constituents’ concerns, and they come together to collaborate on policy and budget decisions that reflect the interests of the citizens we represent. Are these purposes mutually exclusive in the midst of a pandemic?

I argue they are not.

We must recognize the difference between short-term emergency action and a protracted emergency, now in its fourteenth month. In either case, the governor is within his legal abilities to take decisive actions separate from legislative action. In the case of a protracted emergency, however, it is only proper that the governor would seek to include the legislative branch in the enactment of policy.

This is why many legislators in both parties spent a good part of 2020 asking the governor to call a special legislative session. Five and a half months into the emergency, I penned a letter to my colleagues, requesting that we call ourselves into a special session by a two-thirds vote of the legislature. I concluded my appeal:

Government feels distant to people today, despite a multitude of technologies that make aspects of democracy more pronounced. The legislative process remains a focal point for hope that we might bridge the distance.

And in a time of social distancing, when people are eager to regain some sense of control over their lives, it is more important than ever that people feel like they have a voice in their government. The legislature is uniquely suited—and constitutionally designated—to provide this voice in the deliberations of state government. If ever there was a time for us to go to work, it is now.”

Many others called for the legislature to convene as well. And from March until December, the legislature did not meet.

It shows that we need a stronger role for the legislature written into our state emergency powers law.

That is why the legislature should act, in the remaining days of the 2021 legislative session, to reform our state’s emergency powers law to formalize the role of the legislature in all emergency actions by the governor if they extend past 30 days.

The legislature should act quickly to pass Senate Bill 5039, sponsored by Sen. Lynda Wilson (R-Vancouver) and Sen. Mark Mullet (D-Issaquah) or House Bill 1557, sponsored by Rep. Drew MacEwen (R-Union) and Rep. Mike Chapman (D-Port Angeles).

Neither bill has been heard in a legislative committee, but it isn’t too late for the full House and Senate to take them up. For the legislature not to reform our emergency powers statute in this time when full partnership between the legislative and executive branches of government is so badly needed would be an abdication of responsibility. 

Hans Zeiger is a member of the Pierce County Council. He served in the State House of Representatives from 2011-2017, and in the State Senate from 2017-2020.

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