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Editorial: NM’s public health emergency law needs checks and balances

Before March, few New Mexicans had likely heard of the state’s Public Health Emergency Response Act. Many still haven’t – even three months after its statewide implementation by Gov. Michelle Lujan Grisham.

The law gives the governor extraordinary authority during a public health emergency, including the power to implement executive orders punishable by “a civil administrative penalty” of up to $5,000 a day. It also gives state government the authority to ration health care supplies, evacuate health care facilities, isolate or quarantine people and even exercise oversight over burials. While the law states a declaration of a public health emergency automatically expires after 30 days, the governor has unlimited power in extending it again and again – which she has done.

Lujan Grisham initially invoked the law March 11, when the first cases of COVID-19 surfaced in New Mexico. It was the first time the law had been used since it was enacted in 2003 in response to the 9/11 terrorist attacks. And the governor hasn’t been shy about its implementation, declaring some businesses “essential” and others “nonessential.” So far the state has escaped the massive surges in cases seen elsewhere. But numerous employers and community and political leaders have complained about the one-size-fits-all nature of many of the orders, her treating areas of the state with few to no cases the same as hotspots with thousands, and her funneling of crowds to big-box stores selling many of the same items as shuttered small, locally owned shops.

Never before has so much unchecked power rested in the Governor’s Office or has a single law impacted the everyday lives and livelihoods of so many New Mexicans.

In a sign of the divided times, Republicans have sought to curtail the Democratic governor’s emergency powers, while some of her fellow Democrats in the Roundhouse have proposed expanding them.

House Republicans proposed a bill in the just-completed special session requiring the governor to submit to the Legislature a request to extend an emergency declaration that lays out why, for how long, what the action plan entails and specific requests for any appropriations. Predictably, the Republican bill failed to make the governor’s call for the special session.

Democrats’ proposal attempted to expand the governor’s powers by suspending in-person requirements for signing certain official documents (notarized paperwork, wills, etc.) and allowing alcoholic beverages to be delivered with food orders. That died after the Senate ignored it and House Republicans fought it. A spokesman for the governor said the partisan pushback was predictable and disappointing.

That is true for both proposals.

Republicans have again gone to the state Supreme Court in hopes of striking down the governor’s powers during emergencies and disasters, but this isn’t a matter for the courts. It’s a matter for the executive and legislative branches. And it shouldn’t be a partisan issue. Democrats should also be concerned about the law’s overreach. After all, a Republican may again occupy the Governor’s Office and declare gun shops essential and abortion clinics nonessential, a reverse of Lujan Grisham’s orders. If ever there were a law in need of a serious check on the balance of powers, it’s this one.

The coronavirus isn’t going anywhere anytime soon, so the Public Health Emergency Response Act will remain relevant in the lives of New Mexicans for the foreseeable future. Lawmakers need to hear from their constituents between now and the regular session in January to formulate a reasonable system that allows the executive to move quickly at the onset of an emergency, but also requires Legislature involvement if the emergency continues. No matter their political party, one person should not be able to unilaterally call all the shots for three months running – and longer.

Both the Republican and Democratic proposals have merit and together offer a good starting point. Lawmakers need to take off their partisan hats, recognize they were elected to represent their constituents and hammer out a compromise. The governor has said repeatedly COVID-19 has no political allegiances. Neither should the state’s responses to it.

This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.