OPINION

On February 29, 2020, Governor Inslee issued a declaration of an emergency related to the COVID pandemic. Since then, the Governor has issued numerous emergency orders either waiving various laws and/or imposing restrictions on citizens and businesses. While most Governors across the country have already rescinded their emergency declarations (or had them automatically expire), Washingtonians will have been living under emergency governance for 900 straight days on August 17 this week. Our Governor has provided no metrics or estimates for when he will end the current COVID state of emergency in Washington.

Here are many of the Governor’s press releases during the last 900 days describing life in Washington under the emergency orders:

• March 11, 2020: “Starting today, events that takes place in King, Snohomish, and Pierce counties with more than 250 people are prohibited by the state. This order applies to gatherings for social, spiritual and recreational activities. These include but are not limited to: community, civic, public, leisure, faith-based, or sporting events; parades; concerts; festivals; conventions; fundraisers and similar activities.”

• March 23, 2020: “Tonight, Gov. Jay Inslee spoke directly to Washingtonians to announce he will sign a statewide order that requires everyone in the state to stay home. The order will last for two weeks and could be extended…This proclamation will: Require every Washingtonian to stay home unless they need to pursue an essential activity. Ban all gatherings for social, spiritual and recreational purposes. Close all businesses except essential businesses.”

• April 2, 2020: “Gov. Jay Inslee announced a month-long extension of his ‘Stay Home, Stay Healthy’ emergency order Thursday evening. The order, which banned all gatherings and temporarily shuttered non-essential businesses, will continue through May 4…Public gatherings remain banned and non-essential businesses may reopen May 5. If gatherings are held in violation of the order, individuals are encouraged to notify their local police department. Do not call 911.”

• March 11, 2021: “Gov. Jay Inslee today announced that Healthy Washington: Roadmap to Recovery will be transitioning from a regional approach to a county-by-county evaluation process. The governor also announced a new third phase of the Roadmap, a return for in-person spectators for professional and high school sports. Effective March 22, the entire state will enter Phase 3.”

• June 15, 2021: “Gov. Jay Inslee released a statement today on numbers used to determine when Washington state will fully reopen. ‘Many people, myself included, are eager for our state to fully reopen. I have said repeatedly we are going to do this on June 30 or when we hit 70% of people 16 and up initiating vaccinations–whichever happens first. We use age 16 and up as that population was eligible when we made the announcement.’”

• March 11, 2022: “Today, Gov. Jay Inslee updated Proclamation 20-25 (Washington Ready) to rescind the face covering requirement in most places. The face covering requirement will remain in place in healthcare settings, long-term care facilities, and correctional facilities and jails. In addition, Proclamation 20-25 is also updated to protect the right of all persons to continue wearing a face covering in any setting, except that individuals may be required to remove their face coverings briefly for identification purposes or in order to comply with state or federal law.”

• August 5, 2022 (press release not posted online): “Gov. Jay Inslee has issued an updated directive regarding policies that require state employees to be vaccinated against COVID-19. The updated directive reflects feedback and recommendations from state employees and labor partners to pursue options for offering incentives for COVID-19 boosters instead of making them a requirement. The current requirement that new and current employees be fully vaccinated–meaning the individual has received all doses of the primary series–will remain in place.”

Whether or not you agree or disagree with every decision the Governor has made for the last 900 days, the fact remains these decisions with vast impact on individuals and businesses were made behind closed doors in the executive branch.

It is true that in an emergency, governors need broad powers to act fast. Legislative bodies inevitably take longer to assemble and act than a single executive, so they temporarily delegate their power to the executive in emergencies. But these powers are supposed to be transferred for a limited period of time with meaningful legislative oversight of the decisions made.

Last week, Court of Appeals Judge Bernard Veljacic (appointed by Governor Inslee) wrote this dissent in a case concerning emergency powers:

“Even so, I am not convinced that the legislature, in making the grant of authority, anticipated such a broad and lengthy imposition of emergency health measures when it first enacted chapter 43.06 RCW. It is true that our Supreme Court has recognized that the broad grant of authority ‘evidence[s] a clear intent by the legislature to delegate requisite police power to the governor in times of emergency.’ But this begs the question: ‘for how long’?

Certainly, while initial executive response to emergencies should be robust and unhindered by the burden of administrative or legislative oversight, this should not be the case over a longer period of time. Of course, in the early days of an emergency, Washingtonians would suffer if required to wait on the executive to set a legislative session, assemble the necessary quorum, and oversee a vote on a course of action. But at some point, over the long term, an emergency grows less emergent. After all, time allows for the opportunity to reflect. That same opportunity should include legislative review.

In all instances, we must be careful with such broad grants of authority. We would do well to employ a healthy skepticism of such authority upon objective consideration of who might possibly wield it at some point, or what they might deem an emergency.”

Long-lasting emergency orders should receive the input and affirmative approval of lawmakers following a public process, allowing the perfection of policies through a collaborative weighing of all the options, alternatives and tradeoffs. This is precisely why the people’s legislative branch of government exists–to deliberate and provide guidance to the executive branch on what policies should be in place and how to implement them.

There is a very simple fix the legislature should make next session to restore balance to the state’s emergency powers framework. Harmonizing the existing law so that both waiving of statute and restrictive proclamations expire after 30 days unless the legislature votes to continue should not be controversial. There is no logical reason to treat those emergency actions by the Governor differently.

Requiring affirmative legislative approval after a set point in time removes not a single tool from the Governor’s toolbox. All existing authority remains, the only change is that the closed-door policymaking is required to be justified to the people’s legislative branch of government to continue a policy (i.e., the separations of power and checks and balances envisioned and promised under our republican form of government).

The Governor should not fear being required to make the case to lawmakers why a particular emergency restriction is appropriate to continue, and the legislature should not hide from its constitutional responsibility to debate and adopt policy. At some point the executive branch should be required to receive permission from the legislative branch to continue making far-reaching policies under an emergency order.

Our system of governance is not meant to be the arbitrary rule of one behind closed doors. Judge Veljacic is correct that ‘we must be careful with such broad grants of authority.’ An emergency order should never last 900 days unless it has received affirmative authorization for continuation by the legislative branch of government. It is past time to end governance by press release and return to the normal public legislative process.