House hears proposals to limit governor’s power during emergencies

Two constitutional amendments that would limit executive power and give the General Assembly more authority during states of emergency were heard by a Virginia House of Delegates subcommittee Monday.

The privileges and elections constitutional amendments subcommittee held a voice vote ​to pass by the amendments for two weeks. The committee ​will vote on all constitutional amendments heard this session on Feb. 1.

Del. Tony Wilt, ​R-Harrisonburg​, filed ​HJ 513​ to require the governor to get ​approval from the General Assembly to issue a state of emergency that restricts the operations of private businesses, nonprofit entities or people for more than 45 days.

Another amendment heard Monday, ​HJ 514​, filed by Del. Michael Webert, R-Marshall, would require the governor to convene a special session whenever declaring a state of emergency for longer than 90 days or extending a state of emergency for 90 days in aggregate.

The main difference between the amendments is the number of days the governor can declare a state of emergency without input from the General Assembly. Wilt said he would be open to reconsidering the number of days stated in his amendment, while Webert believes the limit should be 90 days.

“After 90 days we would have some semblance of what was going to happen and policies we needed to implement,” Webert said.

Regardless of the day limit, Wilt thinks an amendment that restricts the governor’s actions is necessary.

“Right now 34 other states have some pretty significant restrictions and oversight on what their governors can do in the way of emergency declarations, and I think that Virginia should certainly join that number,” Wilt said.

Wilt said the actions of Gov. Ralph Northam during the COVID-19 pandemic was the impetus for his amendment but assured that his belief in the need to limit the governor’s power was not dependent on the political party of the governor.

“I would like to stand before you and say if there was a Republican governor and we were in the same situation, I would have the exact same concern,” Wilt said.

Wilt and Webert agreed that an amendment to the constitution is needed to ensure a separation of powers, as did the two citizens who spoke during the meeting ​— ​Steve Rossi representing the Family Foundation of Virginia and Victoria Nicholls of ​Chesapeake.

“No matter what party is in power, it is the legislative branch, not the executive, that’s supposed to be legislating,” Nicholls said.

Some subcommittee members expressed concern with specific language in Webert’s amendment. Del. Dawn Adams, ​D-Richmond,​ thinks the language “in aggregate” ​is too broad, she said.

Meg Lamb, assistant section manager of the General Laws, Administration and Elections Section, said including the wording “in aggregate” ensures that the governor cannot evade the special session requirement.

“There was a concern that if it was just a … 90 day state of emergency that if a governor called one for 89 days and then extended it for 45 and extended it for 45 it would never trigger the special session requirement,” Lamb said.

However, the “in aggregate” limit would not apply to the governor declaring a state of emergency for a separate issue, only on building upon a previously declared state of emergency, Lamb said.

Constitutional amendments​ have to be approved by both the House and the Senate during consecutive General Assembly sessions with an intervening election.​ ​Subcommittee chairman Del. Mark Levine, ​D-Alexandria, ​said it might be of interest to limit the number of amendments put on the ballot, and both delegates and citizen speakers discussed the possibility of combining Wilt and Webert’s amendments because of the similarities between the two.