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The Legislature should curb a governor who has vastly overstepped his constitutional authority

Michael Schaus
Michael Schaus
Photo of the front of the Nevada Legislature building.

Somewhere along the way, as Americans, each of us learned that our government is divided into three co-equal branches, providing “checks and balances” against the accumulation of power. Unfortunately, during times of crisis, this basic tenet of western democracy is apparently easily forgotten. 

It was good news to hear Gov. Steve Sisolak announce that he would gradually be reducing coronavirus-related restrictions. However, the precedent that his actions have set over the course of the last year—that declaring a state of emergency grants the governor powers that are virtually unlimited in both scope and duration—is dangerous to our form of democratic self-government. 

What began as an emergency reaction to protect our health care infrastructure against a novel and mysterious global pandemic quickly turned into a year of legislating by executive decree in a way that crushed the livelihoods of countless Nevadans. 

It’s beyond time to ask whether our current circumstances still justify such extreme executive powers. 

Certainly, the coronavirus continues to pose some risk to Nevadans—especially with new strains appearing and vaccines still slowly being distributed to those in need. However, such risks are inherently different from the kind of imminent threats that would justify the decidedly anti-democratic measure of continuing to give one branch of government total control over huge swaths of the social and professional lives of Nevadans. 

In fact, the sheer longevity of the “emergency” betrays the sense that a suspension of democratic norms is necessary for the protection of Nevadans. By its very nature, a state of emergency should be limited, focused and short-lived—such as coordinating the evacuation of a city in the face of an imminent threat, limiting freedom of movement during a military attack or responding swiftly to save lives in the aftermath of a natural disaster.  

Every state in the nation allows its executive branch aggressive policing powers to respond to such genuine emergencies—and with good reason. After all, the normal legislative process of crafting bills, debating them with colleagues, passing them through two legislative chambers then having an executive sign them into law is cumbersome, deliberate and ill-equipped to respond quickly to a time-sensitive crisis. 

Given that a mysterious global pandemic was unlikely to wait patiently while lawmakers negotiated a nuanced response, the governor’s initial declaration of emergency went largely unopposed. However, that doesn’t mean such executive authority should be unlimited, or that the duration be indefinite. 

As the “emergency” has lingered on, we’ve seen that the concerns used to initially justify the governor’s power to micromanage vast swaths of our professional and personal lives have changed. 

Unlike the early days of the pandemic that were fraught with uncertainty and unknowns, we now have a wealth of data that allows us a much clearer picture of the risks posed by the virus, allowing a more targeted approach to protecting a community’s most vulnerable citizens. This new information not only provides policymakers with the ability to address coronavirus challenges in a more targeted fashion, it also means the sense of urgency that accompanied the uncertainty at the beginning of the outbreak no longer exists to such a degree. 

Across the state, there is a wide diversity of opinion on how best to balance the interests of public health with that of individual freedom, economic interests and the consequences of deeply restricting businesses and workers. Unfortunately, these various perspectives have not had an opportunity to forge themselves into public policy that is representative of Nevada’s diverse communities, because the government institution designed to do precisely that—the Legislature—has been entirely shut out of the process.  

Instead, for the last year, Nevadans have been governed by an executive office that has assumed for itself the role of the Legislature with virtually no checks or limits on its power—both making and enforcing crushing restrictions on individual freedom, in the name of public health, without so much as having to get a single vote from the very individuals that Nevadans have chosen to be their representatives in government. 

Now that the Legislature is in session, one might hope lawmakers are jealous enough of their power to consider limitations on the governor’s ability to infringe on their role during a “state of emergency” that is open-ended and, apparently, without clear limiting principles. So far, at least two bills have been proposed to require legislative approval for a governor’s “state of emergency” to extend beyond a few weeks—however it is yet to be seen whether the Legislature will seriously consider either proposal. 

It should. The underlying issue is one that goes beyond specific policy decisions made by Gov. Sisolak during the pandemic, and is rooted instead in the underlying concern for preserving a democratic form of government—even in times of genuine crisis. After all, one of the most troubling political phenomena of the coronavirus era has been just how easily governors around the country were able to abandon our traditional system of democratic self-government during a time of uncertainty and fear.  

As we learned when we were children, the Legislature has an obligation to act as a bulwark against such consolidation of executive power. If lawmakers prove unwilling to fill that basic role, it will be as direct of an attack on our constitutional order as any of the emergency powers assumed by the governor.  

Michael Schaus began his professional career in the financial sector, where he became deeply interested in economic theory and the concept of free markets. Over a decade ago, that interest led him to a career in policy and public commentary—working as a columnist, a political humorist and a radio talk show host. Today, Michael is director of communications for the Nevada Policy Research Institute and lives with his wife and daughter in Las Vegas.


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