South Carolina governor Henry McMaster’s office has been exerting broad executive authority since declaring a state of emergency in the Palmetto State back on March 13 in response to the coronavirus pandemic.
But what is the extent of the governor’s emergency authority? And for how long does he get to continue exercising it?
While there are lingering questions over who is really running the show in McMaster’s office, a separate discussion is now underway regarding the extent of the governor’s emergency powers. And no … this time we are not talking about the acrimonious back-and-forth between McMaster and local officials over competing executive orders.
This time, the debate is taking place among state leaders …
On Monday, the office of S.C. attorney general Alan Wilson weighed in on the matter – responding to a request for an opinion from state representative Josiah Magnuson. According to Magnuson, who represents S.C. House District 38 (map) in Spartanburg county, McMaster can only exercise his emergency authority for fifteen days unless this power is explicitly extended by the S.C. General Assembly.
Did lawmakers approve such an extension during their recently convened emergency session?
No … they did not.
In fact, they got absolutely nothing done thanks to the hijinks of government-run utility Santee Cooper, which decided to sabotage the proceedings in an effort to block lawmakers from considering various options related to its future management.
Anyway, is Magnuson correct? Does McMaster really only get fifteen days to exercise his emergency powers? According to S.C. Code of Laws § 25-1-440, which addresses the governor’s emergency authority, yes.
“A declared state of emergency shall not continue for a period of more than fifteen days without the consent of the General Assembly,” the statute noted.
This consent flows from Article I, Section 7 of the South Carolina Constitution, which holds that “the power to suspend the laws shall be exercised only by the General Assembly or by its authority in particular cases expressly provided for by it.”
Like states of emergency …
Why does this fifteen-day limit matter? Because McMaster – or whoever is running his administration – has cranked out at least eight executive orders after March 28, 2020, which is when his emergency authority technically expired, according to the statute. Among these orders? The controversial “home or work” order that has generated all sorts of dubious enforcement actions.
Are these orders legitimate?
Good question …
McMaster’s office has sought to work around around the fifteen day statutory limit by issuing follow-up emergency declarations – one on March 28, 2020 and another on Easter Sunday, April 12, 2020. These declarations note that South Carolina “has taken, and must continue to take, all necessary and appropriate actions in confronting the unprecedented, evolving, and accelerating public health threat” presented by the coronavirus.
Both orders clearly reference the same threat, though … raising questions as to whether they are mere exercises in semantics.
(Click to view)
(Via: S.C. Governor)
According to Wilson’s office, while the letter of the law is clear “nothing in the statute prohibits McMaster (above) from declaring in the wake of a constantly changing and evolving pandemic, a ‘new emergency’ based upon the new facts and circumstances at the end of a fifteen day period.”
“If the Legislature had intended that the Governor was limited to one fifteen day declaration of emergency, and one only, it could have easily said so,” wrote S.C. solicitor general Bob Cook in a response (.pdf) to Manguson. “A pandemic certainly is not expected to end before the expiration of the fifteen days; the Governor must, therefore, base his decision to declare a new emergency upon new circumstances and intensifying threats.”
Having said that, Cook noted “the ultimate police power resides in the hands of the General Assembly,” which has “delegated enormous authority” to the governor. Absent any legislative action to the contrary, Cook concluded lawmakers were still “delegating” – although he added they could “choose at some point expressly to consent or not consent to the Governor’s actions.”
In other words, once the fifteen days are over McMaster’s emergency authority is entirely at the discretion of the S.C. General Assembly.
Our view? Wilson’s office has done a good job splitting the baby on this question … wisely refraining from initiating a constitutional crisis based on a strict interpretation of the emergency powers statutes. The attorney general could have very easily thrown the state into chaos by undercutting McMaster’s authority. Instead, he choose to affirm McMaster’s authority in lieu of an explicit action to the contrary from state lawmakers.
Having said that, the courts might be less inclined to afford McMaster the same operational flexibility … which could raise additional constitutional questions regarding the legitimacy of some of his orders.
To view the opinion from the attorney general’s office in its entirety, you can scroll through the document below …
WEB EXTRA: ATTORNEY GENERAL’S OPINIONMagnusonJ-OS-10470-FINAL-Opinion-4-13-2020-02256117xD2C78-02256152xD2C78
(Via: S.C. Attorney General’s Office)
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