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N.C. House passes bill that would require Council of State approval of governor's emergency powers
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N.C. House passes bill that would require Council of State approval of governor's emergency powers

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The state House has set the Republican-controlled legislature on an apparent collision course with Democratic Gov. Roy Cooper’s likely first veto of the 2021 session.

The House passed on Wednesday House Bill 264, titled “Emergency Powers Accountability Act,” on an expected partisan 69-50 vote after a nearly 40-minute debate.

If the state Senate approves HB264 and then Cooper vetoes it, it would take three House Democrat votes to have the 72 necessary for a veto override. No Democrats voted for the bill.

It also would take the support of two Senate Democrats to reach 30 votes needed for an override in the Senate.

HB264 would set a seven-day expiration on any executive order that does not have the Council of State’s concurrence, and 30-day expiration for an order that does unless the legislature votes to extend the order.

Currently, there are no legislative deadlines for the executive orders, but only what Cooper sets and opts to extend.

The bill would set a statewide emergency as affecting at least 67 of the 100 counties.

The council is comprised of 10 statewide elected officials: governor; lieutenant governor; agriculture commissioner; attorney general; auditor; insurance commissioner; labor commissioner; secretary of state; superintendent of public instruction; and treasurer.

The council has had a 6-4 Republican margin throughout Cooper’s terms in office.

All six GOP council members, foremost Treasurer Dale Folwell, have expressed their desire to fully reopen the state’s economy sooner than Cooper and state Health Secretary Dr. Mandy Cohen have wanted from a public-health perspective.

“It has now been over a year since Gov. Cooper unilaterally placed our citizens under a statewide emergency due to COVID-19,” said Rep. Keith Kidwell, R-Beaufort, and the bill’s lead sponsor.

“Regardless of the politics of his executive orders, this is not how a representative republic works and it is not the intent of the law.”

Republicans supporting the bill said that Cooper should want to have other voices — other statewide elected officials — to help with the burden of leading the state through a pandemic.

“No one person should have such sweeping and unilateral authority to shut down our state,” Kidwell said.

Democratic House members countered during the floor debate by saying North Carolinians re-elected Cooper as governor based primarily on his handling of the first eight months of the pandemic.

Former Lt. Gov. Dan Forest made the pandemic the key issue of the governor’s race, including his preference that the state not have a statewide mask mandate.

“I believe if this bill had been law when the pandemic started, we would never have had a mask mandate and we would have lost thousands of more people,” said Rep. Verla Insko, D-Orange.

Executive orders

Cooper has issued 91 executive orders since declaring a statewide emergency for the COVID-19 pandemic in March 2020, or 44% of the 207 he has signed since taking office in January 2017.

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Those orders have included restricting public-health, educational and economic activity during the first months of the pandemic, as well as recent easing of those restrictions as COVID-19 vaccines became more readily available.

Republican legislative leaders have claimed throughout the pandemic that Cooper is taking advantage of his authority under the Emergency Management Act by not consistently consulting with the council.

During a declared statewide emergency, such as the pandemic, the governor can request the concurrence of the council on executive orders to demonstrate bipartisan support.

However, it is not required in many instances.

Several bills were passed during the 2020 session that would require council concurrence or make certain business sectors — such as bars, bowling alleys, amusement parks and restaurants — exempt from the executive orders.

Cooper vetoed all of those bills. After five veto override votes failed to win Democratic support, Republican leadership backed off additional override attempts for the rest of the 2020 session.

“Clearly, there needs to be a discussion about the endless duration of power that is granted to the governor during a self-declared state of emergency,” said House Majority Leader John Bell, R-Wayne.

“This legislation is not about politics — it is about clarifying the law to restore accountability and ensure stronger bipartisan input.”

Rep. Sarah Stevens, R-Surry, said she “would be just as upset if a Republican governor doing things without the consent and involvement of the other elected officials in this state.”

Stevens suggested that by consulting with council members, perhaps businesses and schools could have reopened sooner.

“I would argue that Gov. Cooper had not acted like a dictator with unilateral authority,” said Rep. Marcia Morey, D-Durham.

“He has spoken to the people of this state weekly. He has held press conferences, explained his reasoning. Every time he backs it up with data and with the secretary of Department of Health and Human Services and the CDC.

“This is a public-health emergency, and as far as I know, there’s not one member of the Council of State who is an expert in public health,” Morey said.

Analysts’ response

The House’s passage of HB264 was not surprising given that “I doubt that the governor’s actions will stop legislators from pursuing either their own reopening measures or substantial changes to the state Emergency Management Act,” said Mitch Kokai, senior policy analyst with Libertarian think tank John Locke Foundation.

“Lawmakers have concerns about entrusting such far-reaching decisions about the state’s economy to one person.

“Under current circumstances, Gov. Cooper could reverse any of his recent decisions at any time,” Kokai said. “Only action from the General Assembly can rein in the governor’s otherwise unchecked power.”

A successful outcome for HB264 is doubtful, said John Dinan, a Wake Forest University political science professor who is a national expert on state legislatures.

“So far, the pattern has been clear and consistent of Republicans being able to pass bills requiring a quicker reopening timetable than the governor would prefer, usually with the support of enough Democrats in the House and Senate to override a gubernatorial veto,” Dinan said.

“But, when the governor issues a veto and it comes time to hold an actual override vote, then support from Democratic legislators falls away and the veto is sustained.”

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