The trend towards more executive power and less legislative importance has been a long time trend in the United States. Many probably recognize that the role of the President has become too important. (And in another very real sense not, because the federal government may be more controlled by special interests and heads of three letter agencies than it is by the president.) This trend towards executive privilege, especially if used to take advantage of uncontrollable crises, has permeated all levels. Nowhere was this clearer than in 2020.
Mayors and Governors across the country took advantage of the COVID-19 pandemic and wielded their power more than ever before. A discussion on how the lockdown policies enacted by governors violated people’s rights and were ineffective in stopping the pandemic is forthcoming, but is not the focus of this article. The aim of this article is to demonstrate the rise of executive power during 2020 and hopefully the reader will agree that these decisions are much too important to be made by one person. Hopefully those who understand will also advocate that more decisions be made in conjunction with the legislature rather than solely by the executive.
Analyzing official records on executive orders from all 50 states, I found that the total number of executive orders issued by governors increased by 163 percent in 2020. Governors issued 3,148 executive orders combined in 2020, with an average of about 63 per governor and a median of 60. I tried my best to exclude appointments, which some states listed as executive orders, but are nonetheless a regular function of the executive, often in conjunction with the legislature. Ten states saw at least a 500 percent increase in executive orders by their governors and five of these states saw a more than 1,000 percent increase in executive orders by their governors. Numbers of executive orders issued during 2018 and 2019 were nearly identical.
Many states that didn’t see an increase in executive orders, had public health or emergency orders under the state of emergency. Among the states which classified the orders differently were Massachusetts, Nevada and New Hampshire. Governor Charlie Baker of Massachusetts issued 68 orders under the declared state of emergency. These orders included closure of public schools, prohibition of gathering of more than ten people and a state-wide mask mandate. These types of restrictions were common at the time in almost all states, and lasted for several months and in some cases into 2021.
Language in Arizona Governor Doug Ducey’s EO 2020—18, which is now expired, reads “All persons may leave their place of residence only for Essential Activities, to participate in or recieve Essential Government Functions, or fulfill Essential Functions outlined in Executive Order 2020-12.”
Believe it or not— Governor Ducey is in the lesser half of Authoritarian governors. Even with a good purpose of trying to stop the spread of a pandemic, a governor has no right to restrict the movement of people, or to tell them where they can go under what circumstances. It is also important to recognize that there will be other pandemics and other emergencies. Even in the lack of any clear emergency, a governor may cling on to the powers once used by their office for some utilitarian reason. It is not healthy for people to be looking for permission from the government to be able to go outside or attend church.
Important decisions about millions of people’s lives should not fall on one person to make. A long struggle is ahead to take back the power from overreaching executives and to put it in the hands of people to be responsible for their own decisions. Legal precedents will have to change, Governors will have to be replaced and legislators will have to step up and demand more cooperation.