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Saint Louis University Journal of Health Law & Policy

Document Type

Student Note

Abstract

During the COVID-19 pandemic, state legislators rushed to amend their public health emergency statutes or state’s constitution to alter the balance of power between the executive and legislative branches during public health emergencies. The power to exercise an unconditional and unilateral legislative veto of a governor’s declaration of public health emergency is among one of the most forceful of these pandemic-era amendments. The Pennsylvania legislature attempted to exercise this kind of power in June 2020 to prematurely terminate the governor’s declaration of public health emergency, which was challenged in Wolf v. Scarnati. While the Supreme Court of Pennsylvania held that this violated the Pennsylvania Constitution’s presentment clause, the Pennsylvania legislature lost the battle, but won the war; Pennsylvania voters approved a constitutional amendment to the state’s presentment clause in May 2021, creating an unrestrained exception for legislative vetoes of the governor’s declarations of public health emergency.

Kentucky, New York, Florida, and New Hampshire’s legislatures granted themselves similar statutory legislative vetoes in the wake of the pandemic. These self-grants of unfettered power to override a governor open the door for partisan politics to more easily derail future public health emergency responses. This Note argues that these legislative vetoes are facially unconstitutional and that, if used, will likely face the same fate as the legislative veto at issue in Scarnati. With that fate in mind, should states that want to enhance legislative oversight and executive branch accountability during a public health emergency follow Pennsylvania’s example and carve an exception into their constitutions, or work within the current constitutional system to achieve these objectives through other means?

This Note endorses the latter approach. Rather than tinker with bedrock constitutional principles of separation of powers and checks and balances as Pennsylvania has, this Note endorses a legislative framework created by the Uniform Law Commission as a constitutional, albeit imperfect, legislative solution to address the need for improved oversight of executive branch declarations and orders and interbranch cooperation in order to best serve the public health needs of its people.

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