A closer look at state mandates, emergency powers, and special sessions

As Washington state and the rest of the world continues to process through the COVID pandemic, governors throughout our nation — Republicans and Democrats — have utilized their offices and authorities in a variety of ways. In Washington state, the Emergency Powers Act (RCW 43.06.220) authorizes the governor to declare emergencies and issue orders in response to those declared emergencies. The original version of this law was enacted in 1969, at a time when likely no one would have anticipated any emergency lasting multiple years. On February 29, 2020, utilizing the Emergency Powers Act, Governor Jay Inslee issued Proclamation 20-05 declaring a state of emergency for COVID-19. This proclamation will likely be in effect until it is terminated by the governor.

Following the emergency proclamation last February, the governor has issued a number of subsequent statewide orders. His appointed cabinet members, such as the secretary of the Washington State Department of Health (DOH), have released additional regulations. These DOH directives include the statewide mask regulations, which are referenced within the governor’s emergency orders. DOH’s Order 20-03 for statewide masking, issued August 19, 2021, is the most recent requirement. For the COVID vaccine, Governor Inslee has issued two different mandates: Proclamation 21-14 for state employees and Proclamation 21-14.1 for health-care workers and K-12 school employees. Both mandates allow for exemptions for medical and religious reasons but not for personal reasons. In accordance with the governor’s authority during emergencies, these directives have the same effect as state law, although temporary in nature.

Many people have contacted me to ask if these mandates are legal or constitutional. The short answer is that we are all entitled to our opinions, but final rulings from the judicial branch – in our “checks and balances” governance model – ultimately determine legality and constitutionality. These rulings include decisions by state and federal courts based on legal challenges, some of which have originated right here in North Central Washington. The federal 9th Circuit Court of Appeals opinion in Slidewaters v. L&I affirmed the governor’s authority to declare the COVID-19 emergency and state Labor and Industries’ power to adopt a rule to enforce the governor’s proclamations. Last summer, a Chelan County court denied a bid from challengers to terminate Governor Inslee’s State of Emergency. While state laws may differ throughout the nation, courts in other states have largely upheld the COVID mandates issued by their governors.

Washington state has the ability to modernize its Emergency Powers Act but enacting a change in law would require approval by the Legislature and Governor Inslee. Last legislative session, I co-sponsored Senate Bill 5039 to expand legislative oversight of the governor’s emergency proclamations by setting a 30-day time limit on all orders unless extended by the Legislature. Senate Republicans attempted procedural efforts to bring this bill to a vote last session, but those efforts were blocked by other senators. Senate Concurrent Resolution 8402 was also adopted during the 2021 regular session. It indefinitely extended many of the governor’s emergency proclamations. Now, most of the governor’s mandates are no longer actually reviewable by the Legislature, just extended in date indefinitely. I voted against this resolution, but it was approved by the Senate (28-19) and the House of Representatives (54-44). Beyond the Legislative process, only a citizens’ initiative – if upheld by the state Supreme Court – could limit executive powers.

Many people have also asked about seeking a special session of the Legislature. According to the Washington State Constitution, the Legislature only meets for part of the year in a “regular session,” which begins each January. Article II, Section 12 of the constitution authorizes the Legislature to call itself into special session with a two-thirds vote. The governor can also call the Legislature into a special session, but he has not done so. The specific process for gaining a two-thirds vote of the Legislature is set forth in the Legislature’s Joint Rule 29. Senate Republicans, including myself, have called for a special session multiple times during the COVID pandemic. Most recently, we have called for a special session to address issues related to police reforms and emergency powers revisions, but we have not attained the two-thirds threshold among members. The political dynamics in Olympia have shifted greatly in recent years. Of the 49 state senators, there are 29 Democrats and 20 Republicans. There is no way to organize a special session without bipartisan support.

I hope this helps explain more about the complicated topics of state mandates, emergency powers, and special sessions. Judging by the thousands of emails that my office has received in recent days, there is definitely interest and questions about them. Clearly, the controversy from Governor Inslee’s recent mandates will likely keep many issues at the forefront of legislative and legal discussions. There is no doubt that the governor’s emergency powers and statewide vaccine policies will continue to be major topics of debate in the months and years ahead.

Brad Hawkins serves as state senator for North Central Washington.