Plans curbing Indiana governor’s emergency power face doubts

Indiana legislators remain determined to limit the governor’s executive order power as the state reaches a full year under a public health emergency from the coronavirus pandemic.

Lawmakers have advanced bills that would curb a governor’s authority to impose emergency restrictions such as mask rules and business closures, although Republican Gov. Eric Holcomb and others question whether those proposals written by members of his own party are allowed under the state Constitution.

The differing proposals passed by the House and Senate would set up ways to either force the governor to call lawmakers into a special session during a long-lasting emergency or give legislative leaders new authority to take such action if the Legislature isn’t currently meeting.

Republican legislative leaders praise Holcomb’s leadership during the pandemic, but the governor has faced conservative discontent over the nearly 60 coronavirus-related executive orders he’s issued beginning with the public health emergency order signed last March 6 — the day Indiana’s first confirmed COVID-19 infection was announced.

Despite more than 12,500 coronavirus-related deaths having been recorded in Indiana, many people have criticized Holcomb’s statewide mask mandate and orders early in the pandemic shutting down some businesses and religious services as government intrusion on personal freedom. Similar debates are occurring in states across the country.

Republican Sen. Susan Glick of LaGrange urged senators last month to approve the plan she sponsored because of the public’s “negative response to order, after order, after order, for which we could do nothing and our hands were tied.”

“We’re not attempting to hold government hostage,” Glick said. “What we’re trying to do is get our seat at the table to be involved in the decision-making process, not be precluded from participation.”

Action to stem the coronavirus spread occurred quickly after Indiana lawmakers ended their 2020 session, with Holcomb issuing a stay-at-home order that closed businesses deemed nonessential two weeks later. The Legislature didn’t meet again until November, despite some lawmakers calling for a special session.

The House-backed proposal would allow a 16-member group of legislative leaders to call lawmakers into an emergency session at any time after the governor has issued any statewide emergency order if the Legislature isn’t currently meeting.

The Senate plan would limit a statewide emergency order to 60 days unless the Legislature votes to endorse it, which could force the governor to call a special session if lawmakers have adjourned for the year.

Those approaches face questions, however, because the Indiana Constitution gives the governor — not the Legislature — the authority to call a special session.

Courts would likely find that the proposals would violate the Constitution by usurping the governor’s authority or by coercing the governor into recalling lawmakers in order to keep intact orders issued amid an emergency situation, former state Supreme Court Justice Frank Sullivan said.

The Legislature could take steps such as further limiting how long an emergency order could remain in effect or require the governor to issue special findings for extensions, said Sullivan, who spent 19 years on the court after being a top staffer for Democratic Gov. Evan Bayh.

“But they cannot interfere with the distribution of powers set forth by the constitution,” Sullivan said.

The state’s emergency powers law was updated in the years after the 9/11 terrorist attacks, including adding epidemics and public health emergencies to the list of 29 specified situations in 2005.

Former state Sen. Tom Wyss, who sponsored the 2005 bill, said the law was meant to allow the governor to act quickly during disasters and agreed with current legislative leaders that a yearlong emergency wasn’t something considered at the time. But he also questions the wisdom of 100 House members and 50 senators trying to step in.

“To try to force his hand or something like that is a tough thing to do because of the separation of powers,” said Wyss, a Republican from Fort Wayne.

Holcomb has said he wants to cooperate with legislators, while emphasizing that his administration has had “to execute on a daily minute-by-minute basis.”

“In terms of guarding executive powers, the bare minimum is that lawmakers pass laws that are constitutional,” Holcomb said. “I seek to work with them from that position and include them in conversations and how we make decisions. We’ve been doing this over the last year.”

Legislative Democrats, most of whom represent urban areas, have largely voted against the proposed limits that have been almost unanimously supported by Republican lawmakers from rural counties that voted by wide margins for former President Donald Trump in last fall’s election.

“If we’re gonna go to handling emergencies from a committee of one — as much as maybe we don’t think that’s correct or it’s too much power — to potentially a committee of 150, I’m not sure which is a better way to handle an emergency,” said Democratic Sen. Tim Lanane of Anderson.