By Mattheus Thielemann.
A delicate balance of powers is the cornerstone of the American republic and its constituent state governments. In recent decades, there has been growing concern, both at the federal and state level, of an increased executive power throwing off this balance. The COVID-19 pandemic brought this imbalance to the attention of voters and politicians alike through the widespread use of emergency declarations, granting special executive powers. In Arizona, there was widespread anger over Governor Doug Ducey’s powers exerted during the COVID-19 state of emergency, which lasted nearly a year and allowed him to close schools and business.
A Needed Change
This anger has backed the Arizona Emergency Declarations Amendment, a proposed constitutional amendment being considered for Arizona’s November elections. Under the amendment, the legislature could alter and terminate the emergency powers of the governor during a state of emergency. Furthermore, it would automatically end emergencies after 30 days unless extended by the legislature. An exception was also included for emergencies due to states of war, floods, and fires.
The original version of the amendment, which almost received the necessary votes, would have applied to all types of emergencies in the state. In Arizona, amendments can be introduced in the legislature and then voted onto the ballot, in addition to initiatives proposed by the public. Only after a late objection from state Senator Ken Bennett did the legislature move to examine the practical implications of the amendment. Unfortunately, requiring a monthly approval of every emergency in the state would pose serious practical obstacles. As of January of last year, Arizona had 41 active states of emergency, most of which were fires and floods. A special legislative session every month to maintain them would be a logistical nightmare.
Another key concern raised was the consequences for failing to maintain these states of emergency. Much federal funding is tied to the existence of these states of emergencies, and the termination of them would cut the strings attached to the federal funding. Arizona relies on federal funding more than almost every state in the nation, with nearly 44% of the state revenue coming from federal funds. This risk to the state’s wellbeing was enough to drastically gut the amendment’s reach before appearing on the ballot this November.
The Bigger Problem
Although the amendment on Arizonans’ ballots may have duller teeth than it once did, the debate behind the amendment shows a concerning problem with national and state balances of power. Namely, the emergency funding incentivizes expanded state executive power.
Since the birth of our nation, a fear of an overpowered executive has been the engine powering policy decisions. From Supreme Court Justices comparing presidents to kings in decisions, to our Founding Fathers’ vehement fear of monarchy, the idea that a democratic, representative body must exist as a check on the executive’s power has been a staple of the American experiment. Despite this, executive branches, both at the state and federal level, have exponentially grown over time.
At the federal level, the president and his subordinate executive branch have grown infinitely more powerful since the founding. This growth has often been a slow creep and not the sudden putsch that the average American may expect when they imagine their President being replaced by a king.
The gradual growth of the executive branch is often accompanied by large reaches of executive power, which tend to arise during emergencies. President Franklin D. Roosevelt’s internment of Japanese-Americans with the infamous Executive Order 9066 came about after the Japanese attack on Pearl Harbor and a mass fear of attacks from within. Following the 9/11 terror attacks, Congress passed the Patriot Act granting President George W. Bush’s administration increased digital surveillance capabilities. President Donald J. Trump used a declaration of a national emergency to clear up funds for the border wall that had been roadblocked by Congress.
Although these emergencies are usually presented as acute situations that simply need increased executive power, the solutions to these emergencies often create lasting change to government function. Some emergencies and their accompanying powers may truly be short-lived, but in far too many cases the powers persist long after the emergency has subsided. The gradual acquiescence of the legislature to increased executive power is antithetical to the checks and balances of American republican democracy. It may be the case that the executive does need increased power in times of crisis, but legislatures need to retain the ability to recoup this power as a democratic check on the executive.
Arizona’s Problem
In recent years, Arizona has worked to address this issue at the state level, but the underlying problem persists. According to a study done by the Maine Policy Institute, Arizona has recently had one of the best improvements nationwide in strengthening legislative counterbalances to gubernatorial emergency powers. Arizona ranked second to last in the union one year ago, but is now middle of the pack. During this time, Arizona’s SB 1009 installed a limit on the length of a state of emergency and required legislative consultation for extensions. While this bill altered the length of emergencies themselves, the upcoming amendment allows the legislature to alter the powers available to the executive during emergencies.
As the legislature takes aim at these powers, the issue of expanded executive powers is brought into light. The amendment’s drafting process represents how the federal acquiescence to executive power has permeated state governments. The logistical concerns that precipitated the major gutting of Arizona’s amendment is an example of how power, once granted to the executive, is difficult to claw back. Governments become reliant on funding, thereby forcing politicians to become the villain when they advocate for legitimate change that may jeopardize it. Legislatures become accustomed to a certain load of responsibility. This makes anyone advocating for more responsibility seem like that they are neglecting the legislatures already full plate.
Moving Forward
Practical concerns hampered Arizona’s attempt to reduce executive authority. Unfortunately, these practical concerns are borne out of a concerning trend in the United States where power is seemingly impossible to regain from the executive after reliance develops. Executive emergency powers exist for a reason, but democratic checks have played an essential role throughout American history. Bolstering these checks should be encouraged by federal policy, not hampered.
Mattheus Thielemann is a 2L at the Sandra Day O’Connor College of Law and graduated from the University of Southern California in 2022 with a degree in Philosophy, Politics, and Law. He has worked in real estate law and with corporate general counsel in his nascent career.