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Few New Mexicans at this point need to be convinced of the awesome powers of the state’s 2003 Public Health Emergency Response Act. Those who are living through the school and business closures, cancelled medical procedures and examinations, ban on mass gatherings, orders to wear masks and self-quarantine or loss of a job needn’t be convinced of the far-ranging reach of the law into their lives.
And while the original 30-day invocation of the act by Gov. Michelle Lujan Grisham was crucial to slowing the spread of COVID-19 and preserving medical equipment and capacity, that was five months ago.
The act has been re-upped several times since then.
Never before has a single law impacted the everyday lives of so many New Mexicans, and all that unchecked power rests in the Governor’s Office.
In the post 9/11 era, state and federal lawmakers passed legislation giving the respective executive branches unprecedented powers to deal with emergencies. New Mexico’s Public Health Emergency Response Act sailed through the Legislature in 2003 with inadequate concern about the powers state lawmakers were ceding to the fourth floor of the Roundhouse. After all, in America in 2003 or 2020, “an emergency is a situation demanding immediate action,” not a lifestyle.
Except it’s become one in New Mexico.
More than five months after its first-ever implementation by the governor on March 11 due to the coronavirus pandemic, some lawmakers are publicly stating the law needs to be revisited.
The governor’s administration has used other emergency laws throughout the pandemic, but the Public Health Emergency Response Act is the one most felt by New Mexicans. It says the executive “may issue an enhanced public health advisory if the governor has reasonable cause to believe that a public health emergency may occur.”
Former state Senate Majority Leader Michael Sanchez was the only senator to vote against the 2003 bill. The Belen Democrat told the Journal’s Dan Boyd in April he was generally wary of bills giving exclusive powers to one branch of government – “It always has scared me if one person has all the authority, even though I understand why it’s needed in times of emergency.”
The concern about one branch of government exercising autocratic powers without any checks and balances from the Legislature has been boiling for weeks among Republicans, who have blasted the Democratic governor’s public health orders as heavy-handed and unnecessarily damaging to businesses. Lujan Grisham and Democrats have said the state’s response to the virus has saved lives and been guided by public health experts, not politics.
And those views are not mutually exclusive – both sides may very well be right – but we’ve had no discussion, debate or compromise since March.
Efforts by Republicans alone at revisiting the Public Health Emergency Response Act have been unsuccessful, their push for an extraordinary session to check the governor’s powers gaining little traction during the pandemic. But bipartisanship may break this political logjam.
State Rep. Daymon Ely, D-Corrales, told the Journal Editorial Board last week he is working with state Rep. Greg Nibert, R-Roswell, on a bill to update the Public Health Emergency Response Act. (Nibert proposed a bill for the June special session that would have required legislative approval of public health orders after 30 days; it failed to receive a hearing.)
Ely, chair of the House rules committee and vice chair of the Judiciary Committee, is right that only a bipartisan approach will work. He emphasizes the legislation he and Nibert are considering for the regular session in January is not a criticism of the powers exercised by the governor throughout the pandemic, but an effort to more evenly balance powers going forward between the executive and legislative branches. “Legislators have ceded too much authority to the executive branch across the country,” Ely says. “Yes, we need Greg Nibert’s bill.”
Ely says the 2003 law was never intended to last indefinitely and new legislation is needed to provide checks and balances beyond requiring periodic legislative approval of public health orders. For example, “the Legislature should be able to call in (Human Services Secretary) Dr. David Scrase and ask questions.”
Nibert says any revision of the law will have to be not just bipartisan but veto-proof. “The executive, when you start reeling in her powers, she’s going to veto the bill,” he cautions. Nibert says several Democratic state lawmakers have expressed a desire to him privately to change the law but Ely is the first Democrat to state so publicly. “At some point we shirk our responsibilities to our constituents if we don’t get to weigh in. (Though tens of millions of dollars have been spent), we haven’t even appropriated monies to deal with the emergency … The executive can’t have unfettered power for extended periods of time; I don’t care what the emergency is.”
And it’s important to realize such a broad law could be invoked again – perhaps to address a public health opioid crisis, or measles crisis, or vaping crisis, or climate-change crisis, etc. The standard to invoke the emergency act is extraordinarily low, which the state Supreme Court affirmed in a ruling last week in a case brought by the N.M. Restaurant Association.
Our state lawmakers got caught up in the post 9/11 bandwagon and unwittingly ceded too much power to the executive branch. They have been shut out of virtually all decisions since before Easter. Of course, some may prefer to not have to face the tough decisions Lujan Grisham is announcing each week. But that’s not the way the balance of power is supposed to work.
America is a representative democracy, not a monarchy. While we need to keep the executive branch strong enough to deal with any crisis, we never should shut out our state lawmakers from decisions that effect citizens in every corner of the state over such an extended period of time. If ever there were a law in need of a serious revision, it’s the Public Health Emergency Response Act.
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.