Are Governors Abusing Their Powers?

North Carolina Governor Roy Cooper

North Carolina Governor Roy Cooper speaking at a podium
While serving as Chairman of the Southern Governors Association, Virginia Governor Doug Wilder asked me to produce a documentary about how he and his nineteen colleagues worked together to deal with matters of regional concern, ranging from increasing trade with Central America, to decreasing the infant mortality rate. The SGA also focused on emergency preparedness initiatives, including how to respond to, and help each other when confronted with, a natural disaster. I was struck by how transparent and cooperative these governors were, especially given that the Association’s membership represented chief executives who hailed from both political parties. Yes, they were strong-willed, principled leaders who knew how to bend the rules, but they also realized the importance of working across the aisles, including within their own states. It’s how Wilder was able to pass the nation’s first handgun legislation, and operate with an annual surplus while increasing funding for social services. If only we had the likes of Wilder and Ann Richards to help us through the COVID pandemic. Instead we have governors who continue to act unilaterally at a time when they should be seeking a consensus.

In April of this year, The National Review’s David Harsanyi highlighted examples of government overreach in eight different states. Those included: Michigan Governor Gretchen Whitmire unilaterally banning garden stores from selling fruit or vegetable plants; the governors of Vermont and Indiana dictating that Walmart, Costco, and Target stop selling “non-essential” items such as clothing; The governor of Vermont banning people from purchasing seeds for their gardens; Philadelphia police dragging a passenger off of a bus because the governor mandated the wearing of face masks; Police in Brighton, Colorado arresting and handcuffing a father for playing T-ball with his daughter in an empty park because the governor ordered parks off limits; Massachusetts police arresting three men for crossing the state line to play golf; Kentucky Governor Greg Fischer’s attempt to ban drive-in church services just before Easter; and Wisconsin Governor Tony Evers invoking his emergency powers, giving him the right to do just about anything he wants during the pandemic, including seizing private property.

Unfortunately our own Governor Roy Cooper is guilty of similar abuses and inconsistencies. Cooper was supposed to have sought concurrence from our duly elected Council of State officers before proceeding with any executive orders or closures during the pandemic. But according to Speaker of the House Tim Moore, Cooper abandoned that legal precedent, “when some members of the Council of State objected to his plan.” Last week, after Cooper vetoed several bills that would have reaffirmed the role of the Council, and brought relief to shuttered businesses, Speaker Moore said, “Families and individuals are desperate for a balanced approach to recovery that protects the public’s health without permanently devastating small businesses across our state…it is clear that Governor Cooper is unwilling to prioritize struggling North Carolinians over his own power.”

Meanwhile, Cooper’s opponent in November, Lt. Governor Dan Forest, is preparing to sue the Governor for doing an end run around our Council of State, and ordering closure of some businesses while extending restrictions on others. “The Governor has repeatedly ignored the law, enacting mandates that selectively target the businesses and citizens of North Carolina without concurrence from a majority of the Council of State,” said Forest in a press release late last month.

Of course, the deck is stacked against Cooper in that regard because the ten-member Council of State comprises four Democrats and six Republicans. As Speaker Moore alluded to, Cooper knew that the Council’s Republican majority would never go along with his various Executive orders and phase-in plans, but instead of compromising, he went full-bore ahead without any checks and balances in place to stop him.

But Cooper’s abuses of power aren’t just of concern to political opponents. Groups representing churches and bowling alleys have successfully challenged the Governor in Court. And, according to WBT, more than two dozen media outlets around the state have filed suit against Cooper because he refuses to release COVID-19 related records, including a database that details the actual number of cases, and communication between various state officials and local health departments.

In March of this year, Miriam Seifter, an associate professor at the University of Wisconsin Law School, addressed the issue of gubernatorial abuses in an article for the Harvard Law Review. Dr. Seifter noted that framers of, “Early state constitutions…were concerned… because they believed colonial governors abused their power. Today a vigilant public is an important check against just making sure that these powers, which are extremely important in controlling epidemics, are exercised in a responsible and nondiscriminatory way.”

No doubt some of Governor Cooper’s orders initially helped to stem the tide of COVID cases, and prevented our hospitals from becoming overwhelmed. Nevertheless, it is incumbent upon the Governor going forward, to be more forthcoming, transparent, and cooperative in developing his ongoing strategies to battle COVID-19.

 
 

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