South Carolina’s governor is so weak that it was illegal for him to even suggest — suggest — that the gubernatorally appointed chairman of Santee Cooper step down after the board helped hide problems at a doomed nuclear construction project that sucked $8 billion out of the economy.
But declare a state of emergency and his powers become the stuff of despots’ dreams. As we fight the coronavirus pandemic, Gov. Henry McMaster has breathtaking power under S.C. Code sections 1-3-440 and 25-1-440 to:
Charleston — more than perhaps any other part of South Carolina — had a strong justification for a citywide lock-down to fight off the coronav…
• “(C)ompel performance by elected and appointed state, county, and municipal officials and employees.”
• Suspend any regulations on the “conduct of state business.”
• Transfer “the direction, personnel, or functions of state departments, agencies, and commissions.”
• Order “any and all law enforcement officers of the State or any of its subdivisions to do whatever may be deemed necessary to maintain peace and good order.”
• “(U)tilize all available resources of state government.”
• Suspend “any transportation or other public facilities, or … direct that such facilities be operated by a State agency.”
• Grant up to $20,000 per family to cover “disaster-related, necessary expenses or serious needs of individuals or families adversely affected by a major disaster.” (A 1989 law set the cap at $10,000 but required inflation adjustments, which bring it to $20,794 today.) All actions must be “necessary,” but it’s hard to imagine many government actions that wouldn’t meet that legal (if not political) standard today by helping stop the spread of the virus and helping individuals, businesses or nonprofits survive the coming COVID-19 recession.
It’s also hard to imagine much the all-powerful Legislature normally can do that the governor can’t: He could release prisoners, order government agencies to stop handling routine business via remote meetings and fire agency officials at will (or at least move them to other jobs). He could order planes grounded and buses idled, consolidate the state corrections and juvenile justice agencies, split DHEC into two agencies. He already has reduced the requirements for unemployment insurance, pushed back income tax deadlines, delayed municipal elections and, of course, shuttered bars and restaurants. He could, arguably, delay the June primaries and allow wide-open absentee voting for everyone.
The SC Legislature's don't-blink approval of a $45 million emergency package to help DHEC fight the coronavirus is a crucial reminder of how easy it is for lawmakers to slice through the normal legislative process and make things happen before anyone even notices.
The statute says he can change “regulations,” not laws, but many laws are enforced through regulations. Think, for instance, of all the environmental regulations that a governor other than Mr. McMaster might be tempted to lift.
The “utilize all available resources” language could even be read to allow him to essentially appropriate money. (Tax rebates for everyone?)
And with his curfew power, he could impose a lockdown so tight that the Legislature couldn’t return to Columbia to try to overturn his actions. And then order the National Guard and state and local police to keep them away.
Now, I don’t expect Mr. McMaster to try that, and he certainly has not abused these powers to date. But the law has already created an interesting shift in political dynamics, as state legislators line up to implore the governor to take all sorts of actions that dovetail with their own unfulfilled policy goals, from ordering the Public Service Commission to cut Dominion’s and Duke’s electricity rates to letting people drive with expired tags.
On paper, it looks like there’s a significant check on governors: The state of emergency expires after 15 days unless the Legislature extends it. That’s one reason Mr. McMaster initially closed the schools only for the rest of this month. It’s also why he announced Tuesday that he would be issuing an order to close them longer — rather than actually issuing that order.
If the SC Legislature couldn't meet in person because of the coronavirus, it would have no way to take those actions that even an emergency-empowered governor couldn’t take, like appropriating money to pay for emergency operations.
In fact, though, governors issue rolling states of emergency for hurricanes: one as it approaches the coast, then a new one 15 days later to allow the National Guard to keep helping with recovery. An expert in S.C. statutory and constitutional law confirmed that this is a longstanding and clearly permissible practice. And Mr. McMaster declared a new state of emergency Saturday, extending his authority for another 15 days.
The Legislature tweaked the emergency powers law after the Sept. 11, 2001, terrorist attacks, but the most sweeping powers have been on the books at least since 1985. I’m just not sure many people imagined how sweeping they were.
Of course, a governor’s authority in an emergency has to be extensive, because emergencies require quick, decisive action — something a group, even a group of two, cannot be relied on to take.
But once we make it through an emergency like none we’ve ever seen — our first with the potential to drag on well past 15 or even 30 days, and impact our entire state, and require more drastic responses than a hurricane — we will need to consider whether the powers are too broad or the checks too weak.
And as voters, we need to remember that while his power is normally constrained, we can suddenly find ourselves with a governor with nearly unlimited authority — and keep that in mind as we cast our ballots.