Delegate Kirk Cox’s House bill limiting the length of executive orders will likely die in committee after a Public Safety subcommittee recommended tabling the bill. HB 2087, if passed, would limit the length of Governor Ralph Northam’s executive orders to just 45 days unless the General Assembly passes an extension. Delegate Les Adams (R-Chatham) filed a similar bill, HB 2149, that would have limited the length of executive orders to 60 days, but the subcommittee also recommended that it be tabled.
“House Bill 2087 will curb the governor’s authority to declare long-lasting states of emergency without proper legislative oversight,” a Cox press release states.
In the subcommittee on Thursday, Cox said, “The governor’s probably issued around 21 or 22 executive orders even with COVID-19. Several of his were of an indefinite nature and several have obviously been amended. And I think regardless of party, you’ve got to be concerned about that. We’re an equal branch of government and I think there are rare circumstances where a governor should have unchecked power for months.”
Adams first filed his bill during the 2020 special session, where it was also killed in committee. In the Thursday subcommittee meeting, he argued that executive orders are a kind of legislative power that under normal circumstances should be protected by the legislature. “This is a very important issue with respect to the balance of power,” he said.
“What has been demonstrated in the past several months is that the emergency services and disaster law needs amendment needs some restrictions on gubernatorial action which is essentially unfettered and unlimited,” he said.
Chief Counsel to the Governor Rita Davis argued against the bills. “Both bills impede the governor’s ability to adopt and implement live-saving measures swiftly. It denies the executive the agility to respond to ever-changing emergency situations and to put in place measures that will save lives,” she said.
Davis said the bills could also curtail the governor’s ability to establish emergency response procedures.
“Disasters do not have any time limit. They evolve,” State Coordinator of Emergency Management Curtis Brown told the subcommittee. “We definitely understand that this pandemic has been a very long disaster, but the mitigation steps we have taken have been able to save many Virginian’s lives.”
Under current law, executive orders last until the next June 30 after the General Assembly regular session following the issuance of the executive order. The bill would also block the governor from issuing a similar executive order for the same emergency, once the order expires. Currently, the law allows similar executive orders to be re-issued once expired.
Virginia Republicans say Northam’s use of executive orders to shut down businesses or require masks is in violation of the spirit of the law. Adams said many other states limit the executive order power to 60 days or less.
“Nobody foresaw that the governor would take those broad emergency powers that are dictated in the Virginia Constitution and then basically make them perpetual,” Delegate Jason Miyares (R-Virginia Beach) told The Virginia Star in October. Miyares said the executive order power is meant to help government respond over a shorter period of time. “A lot of this is [due to] the fact that we the Republican Party in Richmond is the minority party.”
At the time, Miyares said that executive orders have unintended consequences including forcing businesses to close. Miyares told The Star, “Two-thirds of all new jobs in America are created by small business owners. They are the economic engine of this country, that’s the American entrepreneur. And nobody is talking about them as victims. They are victims.”
“In Virginia, as of December 31, 2020, the number of small businesses open decreased by 26.7 percent compared to January 2020,” states an economic recovery tracker at Tracktherecovery.org. The first sharp drop occurred in March as schools and non-essential businesses closed. Although the number of small businesses open increased somewhat during the summer, it never reached January 2020 levels, and the number has dropped off again.
“Over the course of the pandemic, many Virginians have been dismayed over executive orders that have little to no basis in scientific study, including a curfew order,” Cox said in the press release. “This bill’s 45-day mark preserves the use of states of emergency for natural disasters and allows for longer orders with proper legislative oversight.”
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