On Monday, S.C. Gov. Henry McMaster issued his 25th consecutive COVID-19 emergency declaration — an awkward workaround of a law, designed for hurricanes, that says a state of emergency expires after 15 days unless the Legislature votes to continue it.
The workaround has worked so far, with the tacit approval of most lawmakers, but there’s always a danger that someone could challenge it in court and a court could declare it unlawful.
That would obliterate the governor’s ongoing public-health restrictions (of which precious few remain) as well as his flexibility measures — concerning, for example, alcohol sales, unemployment benefits and largely unused law enforcement powers — and lead to a cascade of problems and inconveniences that could take days or weeks to correct, while the pandemic rages on.
So we welcome the House’s final passage on Tuesday of a bill to flip the emergency powers law on its head to say that a state of emergency lasts until either the governor or the Legislature ends it. We hope the Senate will act expeditiously on the legislation, which is modeled on an elegantly simple solution that Sen. Chip Campsen outlined as far back as May, and which senators haven’t taken up yet.
We hope too that senators will be as united as the House was in rejecting any efforts — better yet, we hope there are no such efforts — to limit our state’s ability to respond to an emergency. House members summarily rejected amendments by Rep. Jonathon Hill to strip DHEC of the authority to quarantine and isolate potentially infectious individuals — an essential tool for protecting the public health for centuries — and instead require the agency to jump through hoops that could delay its response to a more lethal infection long enough to shatter any hopes of stopping it.
In passing H.3443, the House not only refined Sen. Campsen’s idea but also improved its own initial idea, in two important ways.
First, the bill allows a simple majority in the Legislature to end any emergency order, in a matter of hours if not minutes, in the unlikely but not impossible event that we ever have an out-of-control governor. The normal rules would still apply if lawmakers wanted to amend a governor’s orders: He would have a chance to veto the legislation, and it would take a two-thirds supermajority in the House and Senate to override that veto.
The other improvement is an expansion of lawmakers’ ability to gather to debate emergency orders while the Legislature is out of session (generally June through December). In addition to allowing the speaker of the House and president of the Senate to call the Legislature into special session 30 days into an emergency (which they already can do most of the time anyway), it empowers rank-and-file legislators to force a meeting, in an act of little-d democratization that is, as far as we know, unprecedented in our state.
The mandatory meeting would be triggered by a majority vote of legislators from any 10 counties. That strikes us as an odd requirement that gives too much power to a potentially small number of lawmakers: Three counties, for instance, have only two resident legislators, and several have only three or four.
But the 10-delegations rule is now in the bill, and the Senate can refine it — we had recommended allowing a majority of senators and a majority of representatives to trigger a special session — and add a safeguard that prevents a couple of dozen lawmakers from repeatedly forcing the Legislature back into session when it’s clear the majority is comfortable with the governor’s exercise of his authority. Senators should do precisely that.
Preventing a single legislator (the House speaker or Senate president) from blocking a special session is nearly as important as giving the Legislature an opportunity to stop a governor’s emergency orders. But that bypass has to be reasonable. As it’s currently written, it’s not.