FAQ on Governor’s Authority During an Emergency
State law gives the governor authority to take extraordinary action during an emergency. The law authorizes the governor alone to call a “state of emergency.” It is not specific about when the state of emergency ends, although it does require the governor to lift the state of emergency when the situation stabilizes.
The governor has two ways to suspend existing law in an emergency. First, the governor can “prohibit” otherwise legal conduct to deal with an emergency. For example, the governor could impose curfews and prohibit people from gathering at certain areas, if necessary, to deal with an emergency.
Second, the governor also may waive existing laws and regulations when necessary to deal with an emergency. For example, in 2020, the governor closed state offices during the lockdown and required most state employees to work from home. There is an existing law requiring people to pass an in-person eyesight exam to receive a new driver’s license. Because the licensing offices were closed, the law would have prevented people from being able to receive a new driver’s licenses during the lockdown. So, that part of the law was waived to allow new licenses to be issued without the in-person exam.
While the emergency law extends extraordinary power to the governor, it drastically limits the Legislature’s role in emergencies. It does not allow the Legislature to determine when a state of emergency ends — that power is given solely to the governor. Additionally, the governor does not need legislative approval to extend “prohibitions” of the law — such as the curfews discussed above. The only role for the Legislature is to review and extend “waivers.”
In the 2021 legislative session, the Legislature approved the extension of a number of “waivers” — such as the waiver of the in-person eyesight test for driver’s licensing highlighted above. But the governor did not ask the Legislature for approval to issue or extend the state of emergency or the numerous prohibitions he has issued — such as mask mandates, lockdowns, and mandatory vaccination requirements.
Republican state lawmakers in the House and Senate introduced bills in the 2021 legislative session that would have changed the emergency laws to clarify the extent of the governor’s authority and restored the balance of power by expanding the Legislature’s oversight role in extended emergencies. The bills were rejected by Democrat state lawmakers and did not move forward. Learn more here.
What authority does the governor have in the case of an emergency?
Why does the governor have this authority? How long has it been in place?
How long can the proclamations be in effect?
Why do the governor’s proclamations mention that he is calling up the State Guard and National Guard?
Updated on August 24, 2021.