More than 630 days and counting. When will Inslee’s state of emergency end?
For months, minority Republicans in the Washington Legislature have called for limits on the governor’s emergency powers. But now even some Democrats are expressing concerns about the open-endedness of the COVID-19 state of emergency and the limited role of state lawmakers.
For more than 630 days, the state of Washington has been under a COVID-19 state of emergency.
In issuing his proclamation, Inslee said the declaration would allow the state to respond “quickly and effectively” to the new virus.
Since then, Washington has experienced five waves of the virus, more than 9,000 deaths and 42,000 hospitalizations, according to the state's COVID-19 dashboard.
In recent weeks, though, case counts have shown a steady drop from their delta variant-driven peak in mid-September (although public health officials are concerned about a plateauing). Also, 80 percent of the 12 and up population has gotten at least one dose of a COVID-19 vaccine, and kids 5 to 11 are now also getting the shots.
Even so, as the two-year anniversary of the start of the pandemic approaches, it looks like COVID-19 is here to stay. And now two key questions are emerging: when will Inslee end the state of emergency and should his emergency powers be reined in?
Inslee won’t speculate as to when he might lift his state of emergency. Instead, he says that day will come when he’s confident the pandemic won’t spring back and overwhelm hospitals.
“And I can’t tell you when that will be, but I hope it’s sooner rather than later,” Inslee said at a recent news conference. “I will tell you this, the one thing I do know, every time somebody gets vaccinated that day gets closer.”
By contrast, Senate Republican Leader John Braun of Centralia thinks the governor should have already suspended the state of emergency.
“Average people of all political persuasions are coming to that conclusion that this isn’t the way they envision the state of Washington being governed,” Braun said. “Not for this amount of time, certainly.”
Democratic state Representative Amy Walen, a former mayor of Kirkland who's the vice chair of the House Consumer Protection and Business Committee, agrees.
“I think it is time to come up with a plan ongoing, but I don’t think we’re in a state of emergency anymore. I think it’s time to wind it down,” Walen said.
But legislators don’t have a say in this, at least not under current Washington law. That’s because once a state of emergency is declared, the executive branch has wide latitude to manage a crisis.
“The governor has very strong and broad powers,” said Hugh Spitzer, a University of Washington law professor. “But they aren’t inherent powers, they’re not constitutional powers. They’re granted by statute.”
That means they can be changed by the Legislature.
Under current law, once the governor declares an emergency it stays in effect until the governor deems it no longer necessary. During that period of time, the governor essentially has carte blanche to issue orders prohibiting certain activities.
Inslee has used that power more than two dozen times since the start of the pandemic. For instance, he ordered people to stay home, shut down businesses, closed schools and limited public gatherings. He also enacted an eviction moratorium and, in August, announced a sweeping vaccine mandate. Most recently, he issued an order mandating proof of vaccination or a negative COVID-19 test to attend large gatherings in the state.
These orders are not subject to legislative approval.
Top Democratic leaders in the Legislature say they’re comfortable with the governor having this broad power.
“I think it’s clear that one person has to be in charge when there is a public health emergency,” said Senate Majority Leader Andy Billig, a Spokane Democrat.
Speaker of the House Laurie Jinkins, who works for the Tacoma-Pierce County Health Department, concurred.
“There are a lot of different ways to do this. I think that generally it’s been done well here in Washington,” Jinkins said.
According to the National Conference of State Legislatures, most states — including Oregon and California — give the legislative branch either the authority to terminate or approve the extension of a state of emergency.
Examples include Connecticut, controlled by Democrats, where recently the governor called the General Assembly into special session to renew his state of emergency.
And Utah, a Republican-run state, where earlier this year lawmakers passed legislation that requires legislative approval for a state of emergency to continue past 30 days.
In Washington, there’s an exception to the governor’s unfettered authority. Legislative approval is required to extend beyond 30 days any waiver or suspension of state law — something Inslee has done more than 50 times since the start of the coronavirus pandemic.
For instance, early on in the pandemic Inslee prohibited visitors to nursing homes and waived the job search requirements for people seeking unemployment insurance benefits.
If the Legislature is in session, then lawmakers must vote to approve an extension of the waiver or suspension past 30 days. If the Legislature is not meeting, then the four legislative caucus leaders — two Republicans and two Democrats — must agree to extend the proclamation, something they’ve done dozens of times over the past 20 months.
“I don’t think it’s an accurate characterization to say there isn’t any legislative oversight,” Jinkins, the speaker of the House, said.
Minority Republicans, though, have frequently criticized the open-endedness of Inslee’s emergency powers. In a September email to the entire House Democratic Caucus, Republican state Rep. Skyler Rude of Walla Walla wrote that he’s not a “rally-on-the-steps (of the Capitol) kind of guy,” but said he was concerned about the impacts on staffing as a result of the governor’s vaccine mandate on state employees, health care workers and educators.
“Your caucus has been unwilling to take the lead on the mandates legislatively — despite remote session rules that allow for a completely safe, remote special session,” Rude wrote. “Executive branch policymaking to this extent does a disservice to both our institution and the constituents we represent.”
Two Democrats responded, according to email records obtained by the Washington Policy Center, a right leaning, pro-business think tank.
“I completely agree and am advocating for us to NOT abdicate our legislative responsibility,” wrote Walen, the Democratic state representative from Kirkland.
Another Kirkland Democrat, House Deputy Majority Leader Larry Springer, also wrote back to Rude.
“[T]his issue is one of the most difficult and controversial ones I’ve ever seen in my 18 years,” Springer said in his email.
In a joint interview with Walen, Springer said he doesn’t want to get in the way of the governor’s need to manage an emergency.
“But after a while, and I don’t know what the ‘awhile’ is, he should come to us and we should have a thorough, public review of how this is going,” Springer said.
Walen said she wants more ability to advocate for her constituents when they come to her with concerns about the governor’s emergency proclamations.
“You know there’s three branches of government for a reason and I represent 135,000-some people and my role should not just be to say, ‘I will express your concerns to the governor’s office,’” Walen said.
During the 2021 legislation session, there were proposals to rein-in the governor’s emergency powers. Majority Democrats, however, didn’t pass those measures.
Those ideas, though, are likely to come back next year. Last week, the Senate’s State Government and Elections Committee held a work session on the topic. During testimony, Jason Mercier of the Washington Policy Center called for legislative approval for all emergency proclamations after 30 days.
“You know our system really is not set up to be the arbitrary decision-making of one person behind closed doors,” Mercier said. “And for too often in this past year it’s felt like we’ve been governed by press conference and not by the public legislative process.”
Mercier has pointed to Hawaii where the Democratic speaker of the House recently announced his plans to introduce legislation to curb the powers of that state’s governor, who’s also a Democrat.
“I’ll be working on a bill that will allow the Legislature to basically disapprove the governor’s emergency proclamation whether it’s the entire proclamation or just a portion of the proclamation,” Speaker Scott Saiki told Hawaii News Now.
Currently, more than half of states are no longer operating under a COVID-19 state of emergency and just 10, including Washington, still have a mask mandate in place, according to tracking by the National Academy for State Health Policy.
“Other states have taken other courses, I recognize that,” Inslee said last week.
But he was unwavering about his approach, calling it sensible and successful. He also noted that some states have experienced COVID-19 death rates two and even three times higher than Washington.
“We’re a state that believes we ought to save lives, and we’re saving lives,” Inslee said.