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?

RCW 43.06.220 acts as the primary source of the governor’s powers during times of emergency. These powers are quite broad. Specifically, subsections (1)(h) and (2)(g) are “catchalls” that grant the governor sweeping authority to prohibit actions in an effort to preserve life and health and to suspend laws that hinder emergency response.

Why does the governor have this authority? How long has it been in place?

The state of emergency laws codified in Sections 200-270 of Chapter 43.06 RCW were first enacted in 1969 with Senate Bill 392. At that time, the Legislature granted the governor the authority to prohibit certain actions and behaviors (the ones found in subsection (1) of RCW 43.06.220), but did not give him the power to suspend laws. This power came in 2008 when the Legislature unanimously passed Senate Bill 6950, which identified specific statutory obligations that could be suspended in an emergency. What Senate Bill 6950 did not include was the catchall power to suspend laws found in subsection (2)(g). The catchall power to suspend laws came about with Senate Bill 5260 in 2019. Senate Bill 5260 also removed the authority of the governor to prohibit the possession of firearms during an emergency.

How long can the proclamations be in effect?

As noted above, the governor has two different forms of emergency powers: the power to prohibit certain acts and the power to waive or suspend laws.

“Prohibitions” issued by the governor under the first part of the emergency authority statute (RCW 43.06.220(1)) last as long as the state of emergency remains in effect and do not require approval from the Legislature to extend. The governor issued the “Stay Home, Stay Healthy” order under this part of the law.

“Waivers or suspensions of law” issued under the second part of the emergency authority statute (RCW 43.06.220(2)) are limited to a 30-day duration, and extensions require the approval of the Legislature. If the Legislature is out of session, the leaders from both parties of the House of Representatives and Senate must unanimously agree to extensions. The order waiving penalties for late tax payments is an example of an order under this part of the law.

Why do the governor’s proclamations mention that he is calling up the State Guard and National Guard?

Under Article III Section 8 of the Washington State Constitution, the governor is the commander in chief of the military of the state. In this capacity, the governor works with the Washington Military Department, which includes the State Guard, the Air National Guard, and the Army National Guard, to plan for and execute emergency management. The language pertaining to the State Guard and National Guard has been in place since the first coronavirus proclamation and is regularly included in emergency declarations. The Washington Military Department manages the Washington State Comprehensive Emergency Management Plan, which includes a 90-page appendix covering pandemics.

Updated on August 24, 2021.