As Stay-at-Home Order Continues, Some Are Calling for Checks on Governor’s Emergency Powers

COLLEEN O'DEA | MAY 21, 2020

NJ Spotlight

Not all legislators, some Democrats included, are happy that Gov. Phil Murphy is continuing to call all the shots.


Two months ago, Gov. Phil Murphy ordered all New Jerseyans to stay at home except in limited circumstances to stop the spread of COVID-19. It was his sixth order related to the novel coronavirus. He has since issued 40 more executive orders related to the pandemic.

With numbers of new cases now increasing at a much slower, though still steady, rate, Murphy has been taking baby steps to reopen the state, though still not lifting that stay-at-home order. People have gotten antsy, more businesses are defying restrictions and some politicians are calling for checks on the overarching powers a New Jersey governor — in this case, Murphy — has when he declares a state of emergency.

Republicans have introduced legislation in both the Senate and Assembly that would limit the amount of time a governor’s emergency order could remain in effect without legislative approval.

“I do not object to the governor having power to take immediate action in the case of an emergency,” wrote Assemblyman Brian Bergen (R-Morris) in a post on the Assembly Republicans’ website. “I do object to the lack of legislative oversight.”

Murphy’s various orders — first shutting down the state and now slowly reopening sectors, as well as ensuring people don’t have to pay for COVID-19 medical visits and tests, and cannot be evicted during the crisis — all stem from his declaring both a state of emergency and a public health emergency on March 9. The declaration of a state of emergency is not all that unusual, with Murphy and other governors doing so as a result of — or even in advance of — certain storms, for instance.

The law that gives the governor broad powers in case of an emergency is the Civilian Defense and Disaster Control Act, first enacted during World War II and last amended in 1953. In disasters, which include any large-scale “unusual incident” that endangers the health or safety of residents, this law gives the governor broad powers. It states: “The purpose of this act is to provide for the health, safety and welfare of the people of the State of New Jersey … by prescribing a course of conduct for the civilian population of this State during such emergency and by centralizing control of all civilian activities having to do with such emergency under the Governor and for that purpose to give to the Governor control over such resources of the State Government and of each and every political subdivision thereof as may be necessary to cope with any condition that shall arise out of such emergency and to invest the Governor with all other power convenient or necessary to effectuate such purpose.”

New Jersey is not alone in giving its governor broad emergency powers: A November 2019 article in the journal Health Security found that 35 states explicitly give governors the power to suspend or amend statutes and regulations during emergencies and another seven states allow governors to change regulations. One benefit, according to the authors, is that “Granting governors the power to temporarily modify or suspend the application of laws during a declared state of emergency allows for an expeditious response to any disaster.”

How pandemic differs from Superstorm Sandy

Superstorm Sandy, which devastated the state in late October 2012, was the greatest emergency situation in New Jersey’s recent past, but a storm is very different from a viral pandemic. During Sandy, former Gov. Chris Christie used his emergency powers to facilitate the cleanup and rebuilding of those parts of the state that were most damaged. Murphy is using his powers to manage the outbreak but also try to prevent its further spread.

Few in the state anticipated Murphy would do so much and for so long, but the skyrocketing rise in cases motivated his actions early on.

New Jersey registered its first confirmed COVID-19 case on March 4. Five days later, when Murphy declared the state of emergency, there were only 11 known cases, and no one had yet died. A week later, the governor began the crackdown: banning all social gatherings of more than 50 and closing all movie theaters, gyms, casinos, and bars and restaurants for indoor dining. The state had just 178 cases and two deaths, but that represented a massive increase in just seven days. By the time he issued the stay-at-home order five days later, on March 21, more than 1,300 were known to be infected — an increase of more than 600% — and 16 had died from COVID-19 related causes.

If anything, in hindsight, the governor may not have taken drastic steps fast enough, said state Senate President Steve Sweeney (D-Gloucester) in a meeting with the NJ Spotlight editorial board earlier this month.

“Look, no one did anything wrong here,” Sweeney said, stressing he was not criticizing the governor. “There was no playbook for this, but looking at it today, after the game was played, who would I have thrown the ball to? You should have closed sooner. I mean the governor took a lot of criticism when he did it, but it was the right thing to do.”

Gradual loosening of the reins

Now, Sweeney is among those eager to see the state reopening with the proper safeguards in place. During that editorial board meeting on May 5, with the number of new cases reported each day in decline, he had envisioned a state operating under what people are calling a “new normal” that includes masks, gloves and social-distancing rules, by this weekend.

“I really hope that by Memorial Day we can open this place completely up,” Sweeney said. “What we’re saying is not flipping the switch like these other states have done, but slowly.”

Murphy has said repeatedly he is using a data-driven approach to determining when to reopen parts of the state and has been loosening the reins ever so gradually. He began by reopening state and county parks at the end of April. He let all stores deemed nonessential reopen for curbside pickup only and allowed parking-lot religious services as of Monday. Beaches, boardwalks and lakes can remain open provided they follow certain rules that take effect Friday. Most recently, he announced that elective surgeries and other procedures can resume next Tuesday.

The governor hinted during his Wednesday press briefing that he would have more reopening announcements Thursday.

But through it all, Murphy has retained control over this pandemic, most recently renewing on May 6 the 30-day public health emergency declaration for another month.

That order allowing Murphy to continue to act unilaterally has annoyed some lawmakers of both parties, though Republicans — who early in the pandemic went along with Democratic proposals — have been more vocal in their criticism.

‘Let’s open this state safely’

Last week, Assembly Republican Leader Jon Bramnick called for legislative hearings to determine when and how to reopen the state, saying, “Let’s call experts, infectious disease experts, epidemiologists, heads of hospitals, religious leaders and let’s vet the way we can open this state safely. But to have just one person, whether he be the governor or not, come on and say ‘Well, I’m going to extend the emergency by 30 days’ — people want more answers than that.”

Bergen’s bill, introduced last Monday in the Assembly, would limit a governor’s emergency orders to just two weeks in duration. At that point, with a few exceptions, an order would remain in effect only after receiving approval from the Legislature.

“New Jersey is a diverse state with vastly different economies and interests depending on the region,” Bergen wrote in explaining his legislation. “The legislature represents every region of the state, and their input is necessary to ensure that a one-size-fits-all approach does not discriminate against New Jersey’s diversity. The vast differences are just too much for the executive office to consider on its own, and this is the fundamental reason for the representative government we have.”

It is doubtful that a bill sponsored by a freshman Assembly member from the minority party will gain traction in the Legislature. Such a limit on gubernatorial emergency power “has not been a part of any discussion we’ve engaged in regards to addressing the current public health emergency,” said Regina Wilder, a spokeswoman for the Assembly Democratic office.

Still, that doesn’t mean some Democrats are happy with Murphy’s continuing to call all the shots. Sweeney said that while the governor’s office is generally keeping him and Assembly Speaker Craig Coughlin (D-Middlesex) in the loop, legislative leaders are not playing any real role in current decisions.

“They’ll call us when he’s signing an executive order to tell us what he’s signing, and they’re moving quick, they’re doing the best they can do, but we’re not really part of any of this,” Sweeney said. That’s not how he would like to see actions moving forward, he added, saying, “I have a role, the Legislature has a role.”

In answering a question about whether Murphy has been taking too many unilateral actions Wednesday, the governor said he is doing his job, as are other levels of government.

“I would just say, emphatically, that it takes a village, we’ve said that from day one,” Murphy said. “There’s a role I have to play, that we play, that the Legislature plays, that county executives — especially the health teams of counties — mayors, others … Everyone’s got a role to play here. And in the case of the Legislature, again, I thank them for the roles that they’re playing.”

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