Have you noticed that people from many states lately refer to what a governor permits?

And have you noticed that many don’t even question the legality of such decrees?

Let’s back up.

A key principle in American constitutional law is the limited and enumerated powers of government: In this country, any government has only those powers that We the People granted to it through the constitution or analogous document establishing it. It has no other powers.

As the U.S. Supreme Court held in A.L.A. Schechter Poultry Corp. v. United States in 1935, “Extraordinary conditions may call for extraordinary remedies. But the argument necessarily stops short of an attempt to justify action which lies outside the sphere of constitutional authority. Extraordinary conditions do not create or enlarge constitutional power. … Those who act under these grants are not at liberty to transcend the imposed limits because they believe that more or different power is necessary.”

Another key principle is the separation of powers. Decent seventh- and eighth-grade history pupils understand that the legislative branch — not the executive or judicial branch — has lawmaking power.

Particularly in the wake of COVID-19 — which stands for Corona Virus Disease 2019 –many state legislators have delegated enormous lawmaking power to their respective executive branches, sometimes without sufficient standards to guide executive branches.

Such delegation — even when temporary to allow governors to address what legislators or governors deem are emergencies — presents four problems. Any one of them, standing alone, suffices to show that such delegation is mistaken.

¯ First, such delegation is unconstitutional. Under the separation of powers, legislators don’t get to give away enormous lawmaking power, especially when they don’t provide sufficient standards to guide executive branches.

¯ Second, even if such delegation were constitutional, some actions taken under such delegation would still be illegal because they’re arbitrary and capricious.

In New York, for example, a 2020 executive order forced some nursing homes to accept COVID-19 patients, rather than directing them to facilities that the federal government had set up for them.

Well, we’ve heard throughout the COVID-19 pandemic that people with weaker immune systems, including seniors, are especially vulnerable.

And an executive order forces nursing homes to accept COVID-19 patients?

¯ Third, even if no actions by governors were arbitrary or capricious, such delegation would still be bad policy.

When such delegation occurs, decisions fall to few people, sometimes only governors.

Regardless of experience or political party, governors are individuals. Individuals can make mistakes, sometimes bad ones, such as ordering nursing homes to accept COVID-19 patients.

With more people involved in making decisions, mistakes — particularly bad ones — are less likely.

In New York, wouldn’t it have dawned on at least one state legislator involved in the nursing-home decision that ordering nursing homes to accept COVID-19 patients was a mistake?

¯ Fourth, even if such delegation weren’t bad policy, one would still want to make sure that the people to whom such enormous power is delegated have the right qualities to exercise such power, especially in emergencies.

Such people would need to be more than bright.

They’d need to possess in large doses such qualities as self-effacing humility, including an ability to admit publicly that they alone don’t have all the answers.

Many people who put their names on election ballots have many good qualities.

However, they tend not be exactly long on such qualities as self-effacing humility, including an ability to admit publicly that they alone don’t have all the answers.

Calvin Coolidge pulled it off, yet he’s exceptional.

We the People granted lawmaking power to legislators.

The wrongful delegation of it must end.

Pages 38-40 of Dr. Randy Elf’s law-review article at http://www.regent.edu/acad/schlaw/student–life/studentorgs/lawreview/docs/issues/v29n1/10–Elf–vol–29–1.pdf address the limited and enumerated powers of government and the separation of powers.

Copyright ç 2020 by Randy Elf.