This article originally appeared at the Josiah Bartlett Center website.
The final House-Senate compromise added to this year’s state budget was a deal to give the Legislature more power during a declared state of emergency. This was an issue of heated debate, as many legislators thought the House and Senate needed a more active role in governing during a state of emergency. The compromise doesn’t go as far as some House members wanted, but it does enhance legislative authority in some important ways.
The Legislature’s existing emergency powers
Under existing law (RSA 4:45), both the governor and the Legislature have the power to declare a state of emergency. The Legislature can exercise this power by passing a concurrent resolution of both the House and Senate.
Once a state of emergency is in effect, the Legislature has the power to terminate it by passing a concurrent resolution in each chamber.
One might have thought that the Legislature was powerless to act once an emergency had been declared. That is not the case. If a majority of legislators believes a state of emergency is no longer justified, or never was, it can convene and vote to end the emergency at any time.
If the Legislature votes to end a state of emergency, the governor has the authority to declare “a new emergency for different circumstances.” That is, once the Legislature has ended a state of emergency, the governor cannot declare the same emergency for the same reasons again. Any new emergency would have to be based on “different circumstances.”
What the Legislature doesn’t have the authority to do under existing law is repeal a specific emergency order other than the emergency declaration itself. This was a big frustration for some House Republicans during the COVID-19 emergency. It also doesn’t have a process in place for reviewing states of emergency. It can convene itself at any time, but there is no calendar or schedule in place to generate periodic reviews automatically.
Emergency powers enhanced in the budget
The Committee of Conference amendment rewrites RSA 4:45 to enhance legislative emergency powers in three specific ways.
- It requires the governor to notify the House and Senate of “impending” emergency orders “as soon as practicable” and to “provide a description of such orders.” This notification requirement ensures that legislative leadership will be informed prior to a declaration of emergency.
- It gives the Legislature the power to terminate “any emergency order” in addition to the emergency declaration. This creates essentially a line-item veto for the Legislature. The General Court can keep a state of emergency in place but rescind any particular emergency order it doesn’t like. Currently, its only option is to repeal the state of emergency itself. Under the proposed change, legislators could partially co-manage an emergency by negotiating with the governor over the orders it would like to see. With the power to repeal any order, lawmakers would have a significantly increased say in what orders are made.
- It requires the governor to call a legislative session 90 days into a state of emergency, and then every 90 days for the duration of the emergency if it lasts longer than the first 90 days. At each of these sessions, the Legislature is required to vote by concurrent resolution on whether to terminate the state of emergency. This forces a legislative vote every 90 days on whether to maintain or repeal a state of emergency.
These changes are not as comprehensive as some House members would have liked. But they elevate the General Court’s role during a state of emergency from spectator to co-manager.