Emergency Power Reform Act

Summary

The model requires that any exercise of emergency powers by the executive branch be narrowly tailored to serve a compelling public health or safety purpose, with judicial review of these requirements. It also provides that all emergency orders infringing constitutional rights will expire automatically after a short period of time unless the legislature ratifies them in existing or special sessions.

Emergency Power Reform Act

Section 1.

Nothing in this act grants additional emergency powers to the governor or any executive branch official.

Section 2.

State officials may issue nonbinding recommendations and guidelines, and may help coordinate public and private, voluntary action to prevent or respond to an emergency. The exercise of any emergency power the governor or other executive branch official may have under [the constitution and] state law that binds or regulates the public, however, are limited as follows:

  • Notwithstanding any other law, emergency orders, decrees, regulations, or other mandates (hereinafter, “orders”) that bind or infringe the rights of private parties must serve a compelling public health or safety purpose, and each order shall be limited in duration, applicability, and scope to the extent reasonably possible to lessen the infringement on individual liberty.

 

  • The courts shall have jurisdiction to hear cases challenging the lawfulness of emergency orders, including compliance with this act’s limitations on such orders. Substantial inequality in the applicability or impact of emergency orders on analogous groups, situations, and circumstances may be one ground for a court to invalidate an emergency order, or some of its applications, on the basis that it is not sufficiently tailored to serve a compelling public health or safety purpose.

 

  • To the extent that the Constitution or other law allows an executive branch official to issue an order that substantially infringes a constitutional right, including, but not limited to, the right to travel, work, assemble, speak, exercise religious practices, and purchase lawful firearms or ammunition, only the governor may exercise such authority from the date of this enactment, and such emergency orders are further limited as follows:

 

  • All such orders shall expire in 5 days unless the Legislature is in session and has at least [15?[ days to consider and vote to ratify or overturn the order, or the governor calls the Legislature into special session or to extend the session for such purpose;
  • All such orders shall expire in [X/30?] days unless:
    1. The Governor or Legislature, by law, terminates them earlier; or
    2. The Legislature does not ratify such orders with a joint resolution during that [30] day period.

Section 3.

Each House of the Legislature may vote to ratify or terminate emergency orders referenced in Section 2 by remote debate and electronic or other means as established by each chamber’s rules, or in the absence of such rules, as specified by the presiding officer of each chamber.

Section 4.

Without subsequent authorization in law, the governor is barred from re-issuing any emergency order that is substantially similar to one that expired without legislative approval or that the Legislature rejected.