41 Pages Posted: 2 May 2006
Courts and scholars have largely overlooked the constitutional source and scope of state executive agency power to avert and respond to crisis. This Article addresses how perceived legal barriers to executive authority under state constitutions can and do have major consequences beyond a state's borders during times of crisis. It proposes to empower state executives to address federal and regional goals without any previous authorization from the state legislature - a presumption of state executive lawmaking, subject to state legislative override, which would give a state or local executive expansive lawmaking authority within its system of government to address national and regional goals during times of crisis.
Part I examines the structure of decision making by state executives during times of interstate crisis, with a particular emphasis on the constitutional structure under which state executives manage crises and the tensions presented in sharing crisis authority with federal regulators. Successful interstate crisis management under the current system requires a Governor to declare an emergency under state law and, in the course of doing so, to assert more constitutional authority than a state otherwise affords. State executive decisions during times of emergency are not always on solid constitutional ground, however, as it may be perceived that a state legislature retains the ability to constrain the executive or that federal law preempts state action.
Part II argues that the constitutional basis for a strong state executive during times of crisis is stronger than the case for a strong national executive during emergencies. I argue that state executives possess inherent authority to address crisis, including lawmaking and budgetary authority, notwithstanding potential separation of powers or implied preemption limits on the state executive. Regardless of constitutional text, broad executive powers must extend to proactive acts of crisis aversion as well as to responses to events. Taking away judicial review at the state level during such times comes at a very small cost so state courts should have little or no role in managing such emergency powers, which can be self-policed by the state legislature.
While the approach of this Article is to suggest a solution based on state constitutional interpretation, which ideally would be endorsed by state courts, its analysis also recommends an approach for state legislatures as they consider state emergency management statutes as well as for Congress as it considers national emergency management legislation statutes.
Keywords: Constitutional law, administrative law, executive power, emergency planning
Suggested Citation: Suggested Citation
Rossi, Jim, State Executive Lawmaking in Crisis. Duke Law Journal, Vol. 56, p. 237, 2006. Available at SSRN: https://ssrn.com/abstract=899942