The West Virginia House of Delegates passed a bill Tuesday that would place tighter time restrictions on states of emergency issued by the governor.
The House approved an amended version of Senate Bill 128 in a 93-3 vote with four lawmakers absent. The bill would limit the powers of the governor in declaring states of emergency, including how long a state of emergency could last before the Legislature becomes involved.
The bill now goes back to the Senate.
Much of the debate Tuesday on the House floor centered on executive orders by Gov. Jim Justice during the COVID-19 pandemic that lawmakers say were harmful to West Virginians. These ranged from policies that shut down businesses and schools to face mask and vaccine mandates, lawmakers said.
In a news briefing later Tuesday, Justice said he doesn’t believe the legislation was a “hit” at him and he wouldn’t be bothered if it was.
“At the end of the day, really and truly, the only thing we should do is be aware of the fact that, as we go forward, we should not stub our toe and handcuff our governor,” Justice said. “What would we have done if we didn’t have the correct emergency powers? What would you have done if we didn’t have a governor who could really move and think and push the right buttons at the right time?”
The amended version of the bill would allow for a governor-ordered state of emergency to last a maximum of 60 days, unless extended by the Legislature. The Senate version of the bill required only that the governor notify the Legislature in writing before extending a state of emergency.
The version of the bill passed by the House would also allow the Legislature to enact provisions before allowing a state of emergency to continue, Delegate Pat McGeehan, R-Hancock, said.
“If we do agree to extend, then we could take all that knowledge we’ve gained within that 60 days and put it in a resolution and say ... we’re going to extend the state of emergency you called, but contingent on this, you know, no more mask mandates. No more mandatory vaccines, or some of the other abuses my colleagues have stood up for,” McGeehan said.
Some legislators felt the bill should have been more restrictive.
Delegate Evan Worrell, R-Cabell, proposed an amendment decreasing the maximum number of days to 30, but that measure ultimately failed 66-31, with three delegates absent. In supporting Worrell’s amendment, Delegate Brandon Steele, R-Raleigh, argued the prolonged state of emergency during the pandemic negatively affected businesses.
“Those of us who have been here and legislated through this know just how long 30 days can be when it’s a friend of yours whose business is shut down,” Steele said. “This is separation of powers. Those who have the ability to enforce law should never have the ability to write it.”
McGeehan said the bill as presented was the best chance at moving the legislation forward.
“In some ways, I sympathize with what [Worrell is] putting forward. I, myself, started out at 30 days. But we’ve arrived at 60 days as sort of a compromise,” McGeehan said.
Two other amendments also failed, including one by Delegate Jim Butler, R-Mason, stipulating that a state of emergency could not infringe on the individual right of self-determination. That amendment failed 63-34 with three absences.
“This, in a way, neuters the entire point of a state of emergency,” McGeehan said in opposing Butler’s amendment. “Essentially, what this amendment does is reduce everyone to sovereign, autonomous individuals who can, essentially, do whatever they want.”
Lawmakers in favor of Butler’s amendment said it would let the governor know that mandates, such as those for masks and vaccines, can have negative impacts. Opponents of the amendment countered that inserting a civil liberties argument at this particular juncture could also thwart compromise.
“If we include these amendments ... I don’t think we really have much of a chance of getting some sort of check on one-man control into law in this session,” McGeehan said. “I think, when we weigh the facts on the ground after 60 days, we can begin to limit the particular powers in a much more precise and knowledgeable manner than simply declaring from the get-go that it’s every man for himself because he has right to his own destiny.”
Butler was one of the three delegates who ultimately voted against the bill. The underlying state code that gives the governor emergency power isn’t constitutional in the first place and should be repealed, he said.
“My grandmother always told me two wrongs don’t make a right. So my preference would actually be to strike the whole emergency powers section in the code and put the power back where it belongs, with the Legislature,” Butler said.
