House Democrats Kill Bill to Check Governor’s ‘State of Emergency’ Authority

Posted on 06-20-2021

Earlier this week, the three Democratic leaders of the Delaware House of Representatives essentially killed legislation seeking to establish a check against the governor’s unlimited authority to declare and renew a State of Emergency.
At present, the Delaware Code (Title 20, Chapter 31, § 3115) gives the governor the power to declare a State of Emergency in response to, or in anticipation of, any emergency or disaster posing a threat to the public. The initial State of Emergency declaration can last for up to 30 days, after which the governor can renew the declaration as many times as he or she wishes.
The state legislature has no role in the process and no viable ability to alter or limit the orders. While legislators could theoretically pass bills, that approach would be unworkable in actual practice. Not only would the General Assembly need initially pass legislation, they would have to do it twice, with the a three-fifths majority on the second occasion to overcome the likely gubernatorial veto.
Gov. John Carney first declared an emergency in Delaware on March 12, 2020 to cope with COVID-19. He renewed the declaration 16 times before announcing earlier this week that he would lift the order on July 13th.
House Bill 49, sponsored by State Rep. Rich Collins (R-Millsboro) and State Sen. Bryant Richardson (R-Seaford), sought to establish a legislative check on such authority. It would have done the following:
  • The governor’s ability to declare an initial State of Emergency for up to 30 days would have been preserved under the bill.
  • When an emergency extended beyond 30 days, the General Assembly would have needed to approve any State of Emergency renewal, as well as any modifications made to subsequent orders. This requirement could only have been waived if the House of Representatives and Senate leaders agreed that their respective chambers could not convene.
  • The governor would have retained the authority to terminate emergency orders, without approval, when the emergency had passed.
  • Any new emergency order (unrelated to weather) issued within six months of an earlier order issued for similar reasons would have required General Assembly approval.
During the House Administration Committee hearing, Rep. Collins noted his bill would have no impact on the current pandemic response. He also told the members that if they released it for consideration by the full chamber, he would amend the measure so that it would not take effect until after the end of Gov. Carney’s term in office.
“I only want this to be about the future,” Rep. Collins said. “We cannot allow this situation to happen again.”
Speaking on the bill earlier this year, Sen. Richardson said this was an issue on which he hoped lawmakers, both Democrats and Republicans, would be able to find common ground. “This bill would allow all legislators to better represent the interests of their constituencies during the most desperate of circumstances – a situation requiring a prolonged State of Emergency. I cannot think of a valid reason why any state lawmaker would vote against a measure that would make them more effective advocates for their districts.”
Those hopes were dashed on Tuesday. Speaker of the House Pete Schwartzkopf (D-Rehoboth Beach), House Majority Leader Valerie Longhurst (D-Bear, Delaware City), and House Majority Whip John Mitchell (D-Elsmere) voted to table the bill, seemingly ending its chances for passage by preventing it from moving to the floor for consideration.
A similar measure, House Bill 330, was introduced during the last General Assembly and died in the House Administration Committee without a hearing.