States of Emergency: COVID-19 and Separation of Powers in the States

No event in recent years has shone a brighter spotlight on state separation of powers than the COVID-19 pandemic. Over a more than two-year period, governors exercised unprecedented authority through suspending laws and regulations, limiting business activities and gatherings, restricting individual movement, and imposing public health requirements. Many state legislatures endorsed these measures or were content to let governors take the lead, but in some states the legislature pushed back, particularly — albeit not only—where the governor and legislative majorities were of different political parties. Some of these conflicts wound up in state supreme courts. This Essay examines the states’ response to the COVID-19 pandemic through the prism of the separation of powers. After considering the actions governors took and the sources of their authority, it focuses on the principal state court decisions concerning the separation of powers questions arising out of the pandemic. Although governors lost a handful of high-profile decisions, they did quite well overall. Courts often read their powers broadly and rejected challenges to their authority. State judicial analysis in these COVID-19 powers conflicts involved close attention to the specific language of state constitutions and statutes, as well as reliance on doctrines used by federal courts. The Essay then reviews some of the state legislative responses — new laws and proposed constitutional amendments — to gubernatorial power. It concludes by considering what the pandemic experience tells us about state separation of powers, the mix of distinctive state arguments and federal analogies in state court analysis, and the role of partisanship in these disputes