Two groups of lawmakers sent from both of West Virginia’s legislative bodies weren’t able to reach an agreement Friday morning on how to address a governor’s authority during states of emergency.
Senators and delegates couldn’t overcome a disagreement on how big a role the Legislature should have in deciding when an executive order or state of emergency or preparedness should continue or end.
Packed in the Senate president’s conference room, six senators and six delegates discussed House Bill 2003 for just shy of 45 minutes while several members of the House crowded in the hallway outside.
In two votes, the committee didn’t adopt the House’s proposal before failing to adopt the Senate’s proposal about 15 minutes later.
During Friday morning’s meeting, Senate Judiciary Chairman Charles Trump, R-Morgan, called the House’s proposal unconstitutional, saying it denied a governor discretionary powers described in the West Virginia Constitution and that it breached separation of powers.
Trump said the effect of the law would be forcing a governor to do something that should be in their discretion.
“I’ll give you credit. It’s artful in that it doesn’t say exactly that the governor must convene the Legislature, but it does effectively say the same thing,” Trump said. “By saying that if the governor does not exercise his constitutional discretionary power in a particular manner, then things happen — I would fear that any court would correctly determine that such a law is a usurpation of the executive by the legislature and a violation of the separation of powers provided for by our constitution.”
Joining Trump from the Senate were Sen. Charles Clements, R-Wetzel, and Senate Minority Leader Stephen Baldwin, D-Greenbrier.
Delegate Jeffrey Pack, R-Raleigh, said it was clear everyone agreed executive powers should be limited in scope, and without the provision in the House bill executive orders could continue indefinitely without any representation of the will of the people on state government.
“All this does is assert that we get that opportunity. That’s all,” Pack said. “This is not even a reflection on the current occupant of the governor’s mansion. This is merely a statement of all the things we’ve learned from COVID.
“In our estimation, this has presented a fundamental problem in the way our government operates.”
House Majority Leader Amy Summers, R-Taylor, presided over Friday’s meeting, and Delegate Nathan Brown, D-Mingo, was the third member of the House’s conference committee for the bill.
House Bill 2003 has been a lighting rod bill this session given the State of West Virginia’s operation under a state of emergency since March 16, 2020, due to the COVID-19 pandemic. There is no set end date for the state of emergency.
Proposed laws affecting the executive authority of a governor have popped up throughout the United States as elected officials have realized that their laws regarding states of emergency haven’t contemplated events lasting longer than a few weeks, Elizabeth Goitien, co-director of the Brennan Center for Justice’s Liberty and National Security Program, told the Gazette-Mail last month.
She said at the time that West Virginia’s bill was different from most other states in that it had carved out specific language that limited a governor’s authority regarding churches.
The biggest point of disagreement between senators and delegates Friday was whether a governor could extend their own state of emergency or preparedness without any action by the legislature.
Under current law, the governor declares a state of emergency or preparedness through an executive order, or the legislature can declare them through joint resolutions adopted during the regular legislative session or a special legislative session.
States of emergency end either through a governor’s executive orders or by the legislature passing joint resolutions.
It takes the support of three-fifths of the members in each legislative body to call a special session. That’s 60 members of the 100-member House and 21 members of the 34-member Senate.
Last summer, the House garnered enough support to call a special session to deal with the state of emergency and the $1.25 billion the state received from the federal CARES Act, but Senate leaders didn’t get enough support there to make the session happen.
In response, lawmakers this week passed House Bill 2014 that will require the Legislature to allocate any unexpected federal money the state receives if that amount is more than $150 million.
The House’s version of House Bill 2003 would have let a state of emergency expire after 60 days unless the Legislature convened for a special session and adopted a joint resolution to allow it to continue. States of preparedness would have expired after 30 days without legislative action.
The Senate’s version of the bill rolled back the legislative authority and kept the ability to extend or end states of emergency or preparedness closer to current law — ending by a decree of the governor or a legislative joint resolution.
The Senate’s version of the bill would have let a governor extend states of emergency or preparedness as long has they provided reports to the Senate President, Speaker of the House, and the Joint Committee on Government Finance every 30 days.
The bills also differed in when they would take effect.
It had been the intent of the House for the bill to effect and end the current state of emergency. The Senate’s bill clearly stated it was not applicable to the COVID-19 state of emergency.
House Bill 2003 isn’t technically dead until next week.
The conference committee can meet any time for up to five days after they were appointed.
The committees were appointed Thursday, meaning they can meet on Monday if committee members so choose.
No committee meeting was announced Friday. If the committee doesn’t meet again and reach a consensus, House Bill 2003 will be dead for the 2021 session, which ends April 10.