When the next pandemic hits, some state officials will find their hands tied

Several Republican governors have seen lawmakers from their own party limit their emergency powers in recent months, a response to highly partisan complaints about masks, business shutdowns and other safety measures to meet the pandemic.

The National Conference of State Legislatures has tracked more than 300 bills in 47 states and U.S. territories related to legislative oversight of executive authority on Covid-19.

And at least 15 state legislatures have passed or introduced bills to weaken the public health authority of governors or local governments, according to a recent report from the Network for Public Health Law and the National Association of County and City Health Officials.

Nearly all of those legislatures are controlled by decisive GOP majorities. In at least three of those states — Indiana, North Dakota and Ohio — lawmakers overrode vetoes from GOP governors to codify new limits. In Kansas, Democratic Gov. Laura Kelly signed two bills that stifled her ability to manage the crisis, acknowledging after the second that she was accepting measures she opposed.

Lori Freeman, CEO of the county and city health officials group, told NBC News, "To use the politicization of Covid to drive legislative changes doesn’t bode well for our government or for our public health system to address public health emergencies in the future."

Public opinion surrounding the pandemic has been shaped around politics. Former President Donald Trump, a Republican, often downplayed the threat, even after contracting and being hospitalized with the coronavirus. Trump’s initial suggestion that the country could be back to normal by Easter of 2020 prompted relentless demands, often from his supporters, that state and local leaders ease up on stay-at-home orders and school and business closures.

In Ohio, for example, Republican Gov. Mike DeWine earned early, bipartisan praise for taking the pandemic seriously and aggressively issuing public health orders. But protesters eventually targeted DeWine. In March, after overriding a DeWine veto, the GOP-dominated Legislature gave itself more power to reject the governor’s decisions.

Dan Tierney, a DeWine spokesperson, said the governor’s main concern with the bill was the impact it could have on future public health crises.

“We had a good sense that, because of the timeline of the vaccine, cases would be dropping before this bill would ever affect the governor’s need to have any health restrictions in place,” Tierney said. “The good news is that we still are working well with this Legislature.”

The measures approved or considered elsewhere typically add legislative oversight and powers at the expense of a governor’s and limit how long executive orders can last.

“Obviously it became a partisan issue,” said state Sen. Niraj Antani, a Republican, who voted to curb DeWine’s authority. “Masks and shutdowns and a lot of this became, frankly, very partisan. But stepping outside of the partisan views, I think some of this is the minutiae stuff, too.”

“Nowhere in our history do we let an executive have unchecked limitless power for longer than the time to deal with an emergency,” Antani added. “Sure, we can argue what that timeline looks like — 30 days, 60 days, 90 days. But certainly not a year of unchecked power.”

Indiana Gov. Eric Holcomb, a Republican, who in his first four years used his veto pen sparingly, has already vetoed two bills this year that could restrict powers at the state and local levels. The GOP-controlled Legislature overrode both vetoes. One of the bills, which would have allowed the Legislature to call itself back for special sessions during emergencies and cancel the governor’s emergency orders, is now the subject of a lawsuit by Holcomb. He says the measure violates the state Constitution by usurping his exclusive power to call special sessions.

“Government should serve as a steady foundation during a time of crisis,” Holcomb wrote in a veto letter. He added that he supports “efforts to increase partnership and collaboration” between branches of government during states of emergency.

Masks remain a frequent partisan target, too. In North Dakota, where Republican Gov. Doug Burgum allowed the state’s mask mandate to expire in January, GOP lawmakers later passed a bill over his veto to prohibit state officials from issuing future mask mandates.

“To strip future governors and their state health officers of any low-cost tool that might be used to save lives and livelihoods in a future pandemic or other emergency would be both irresponsible and an unnecessary risk to the future public health and well-being of North Dakota citizens,” Burgum wrote in his veto letter.

Burgum signed another bill around the same time that limited some of his abilities to manage public health emergencies, expressing a desire to find a “compromise that allows for broader legislative involvement in future statewide health emergencies that affect all North Dakotans.”

Other governors have been more amenable to efforts to limit their powers — and such efforts aren’t always strictly partisan.

The Democratic-controlled Legislature in New York rescinded Democratic Gov. Andrew Cuomo’s pandemic emergency powers in a bill the governor signed. And in Kansas, after Gov. Kelly, also a Democrat, signed another piece of legislation that curbed her authority, she noted in March that the measure “includes provisions that I do not support and that could complicate our emergency response efforts. But I will continue to work with legislators and local leaders to keep Kansans safe and healthy during this pandemic.”

The Kansas House and Senate are both overwhelmingly Republican.

In Utah, where the GOP holds the governorship and both branches of the Legislature, Gov. Spencer Cox in March signed one bill that limited his emergency powers, agreeing they were “necessary checks” on his authority. He vetoed another that would have required him to clear more hurdles when issuing public health orders affecting schools.

The veto stood.

“It was a message bill,” said the sponsor, state Sen. Ronald Winterton. “We were saying, ‘You’re not the lawmaker. We are.’”

Winterton, though, said he was delighted last week when Cox signed a special session bill that will ban Utah schools from requiring students to wear masks in the next academic year.

“We don’t want our kids in masks,” Winterton said.