A Letter to All States in 2024: Check Your Governor’s Emergency Powers

Published December 18, 2023

As all states begin to ring in the New Year with fresh legislative sessions and new legislative agendas, it is as good of a time as ever to remember that governors are not Gods. Since the onset of the coronavirus pandemic, almost every state in the union saw some type of legislation that attempted to take a significant swing at emergency powers granted to their governor and any future governors. 

During the pandemic, many Americans saw their respective governors wield unprecedented power with seemingly unlimited emergency declarations. This overnight shift in governance, coupled with a plethora of governors who abused their pandemic emergency powers, has left several states in past sessions reevaluating constitutional statutes pertaining to emergency provisions and powers granted to the governor during a state of emergency. This upcoming year should be no exception.

With the number of cases of the new coronavirus variant, BA.2.86, on the rise, many Americans are beginning to fear more government overreach, and they aren’t wrong. Unfortunately, yet another COVID-19 variant has the potential to be another excuse, or reason, for unchecked decisions that could affect Americans deeply.

On the federal level, President Biden has already said that he plans to ask Congress for funding to develop a new COVID-19 vaccine. Biden needs the federal taxpayer dollars to entice Big Pharma to develop a new set of vaccines or boosters because the rate of Americans getting covid vaccines has decreased significantly since the rollout of the vaccines. According to CDC data, the number of Americans who received subsequent boosters was substantially lower than the number of Americans who got the original vaccines. After all, the companies developing these vaccines are ultimately businesses. If they won’t be able to turn a large profit from their vaccines, they can get their money upfront via the federal government, with the American taxpayers footing the bill, again.

As all of these forces gather, it’s quite likely that Americans may be barraged with another round of mask mandates, vaccine requirements, looming lockdowns and school closures, and, worst of all – the potential for gubernatorial overreach.

During the outbreak of the pandemic in early 2020 and in the months that followed, the deciding factor for whether Americans could send their children to school, eat at a restaurant, or go into the office ultimately came down to which state they lived in. We saw overzealous power-hungry governors like former Gov. Andrew Cuomo (D) lockdown New York into oblivion – leading to the closure of thousands of small businesses and keeping kids at home for months on end. On the other hand, we also saw ambitious governors such as Florida Gov. Ron DeSantis (R) and Texas Gov. Greg Abbott (R) bucking the lockdown trend and pushing for a return to normalcy.

Too many Americans witnessed their respective governors wield unprecedented power with seemingly unlimited emergency dilatations.

Fortuitously, these series of actions inspired many Americans and many state lawmakers to reevaluate state statutes pertaining to emergency provisions and powers granted to the governor during a so-called state of emergency.

In the months and years following the initial COVID-19 lockdowns, countless state lawmakers introduced legislation strictly specifying what their governors can and cannot do during a state of emergency. Much of the legislation imposes time limits on declarations of emergency and requires bipartisan committees or full legislative votes to renew states of emergency.

Simply put, bills of this kind would place commonsense restrictions and limitations on gubernatorial powers. Most importantly, they would reintegrate the legislature into the governance processes during states of emergency. It aligns with many of the principles developed by The Heartland Institute during the pandemic, which legislators can reference upon any gubernatorial abuses of power.

Some of these ideas and principles include:

  1. The ability to immediately nullify an emergency proclamation via resolution.
  2. The creation of time limitations for an emergency order, renewable by the legislature.
  3. The ability to pass a resolution that requires the governor to call a special session to approve of an emergency proclamation if the legislature is out of session.
  4. Permitting an interim committee or group of legislative leaders to extend or reject emergency proclamations.
  5. The imposition of specific limits to executive authority during an emergency proclamation (i.e., restrict the governor from unilaterally closing businesses, closing houses of worship, or shutting down freedom of the press, and the right to bear arms).

There is a clear appetite among lawmakers and constituents to restrict gubernatorial overreach, especially after the coronavirus pandemic. With legislation such as this, lawmakers can catch up to their peers in other states who have already taken measures to rein in executive authority.

Co-equal governance, checks and balances, and the decentralization of power are bedrock principles of American democracy. Yet, these fundamental principles have been AWOL in many states since the pandemic.

Fortunately, the new year is an opportunity for lawmakers nation-wide to begin to stand up to gubernatorial overreach by reasserting their rightful place as a much-needed check against the executive branch.

The following documents provide more information about executive authority in a state of emergency.

Testimony Before The Georgia House Committee on Judiciary, Scoggins Subcommittee, On House Bill 358, Restoring The State Legislature’s Role In Emergency Management 

Testimony Before the Georgia House Judiciary Committee regarding legislative and executive authority in a state of emergency.

Andrew Cuomo Is Just a Governor, Not a God

Cuomo has issued multiple statements in an attempt to quell the backlash and frustration of New Yorkers and lawmakers in Albany to no avail.

Governors, Not Gods – A Heartland Institute Webinar

The Heartland Institute hosted a webinar on Aug. 27, 2020 for state legislators to discuss how they can rein in governors, who wield seemingly unlimited powers in the wake of COVID-19. For many months, Americans have been abhorred by out-of-control governors who have imposed draconian lockdowns, which have decimated small businesses and people’s livelihoods. For instance, Gov. Andrew Cuomo has been roundly criticized for his heavy-handed and ineffectual response to the coronavirus outbreak in New York, which has drawn substantial blowback. Cuomo has also attempted to coverup his disastrous policy of forcing elderly patients with COVID-19 to return to nursing homes, where they spread the deadly disease like wildfire among New York’s most vulnerable. As the days grow shorter and the temperatures dip lower, now is the time to begin exploring oversight over dictatorial governors and restore power where it rightfully belongs: With we the people, not I the governor.


Nothing in this Research & Commentary is intended to influence the passage of legislation, and it does not necessarily represent the views of The Heartland Institute. For further information on this and other topics, visit the Budget & Tax News website, The Heartland Institute’s website, and PolicyBot, Heartland’s free online research database.

The Heartland Institute can send an expert to your state to testify or brief your caucus; host an event in your state; or send you further information on a topic. Please don’t hesitate to contact us if we can be of assistance! If you have any questions or comments, contact Heartland’s Government Relations department, at [email protected] or 312/377-4000