On Feb. 17, Gov. Phil Murphy signed Executive Order No. 222, extending the Public Health Emergency in New Jersey for an additional 30 days.
Few found it noteworthy. It generally was viewed as a procedural step to extend the state of emergency Murphy set forth on March 9 of last year — one he now has extended 12 times.
But, this part is noteworthy: Before this extension runs out, the state will have been under a health state of emergency for more than a year.
It’s an incredible statistic — and it’s just one of the reasons why Murphy was the unquestioned No. 1 selection on the ROI Influencers: Power List, which was released Monday morning.
It also begs the following questions:
- How long is the state truly in an emergency situation — one in which the governor has such extraordinary powers?
- When will our everyday state of living be considered a new normal, rather than a dire emergency?
- When will New Jersey — and, to be fair, arguably every state in the country — return to a time when decisions, such as the capacity of indoor activities or the return to in-person instruction, get back to a system where the legislative and executive (and judicial) branches decide together?
It is a worthy discussion — without an easy answer.
The country, after all, has reportedly passed 500,000 COVID-19 deaths. And there’s talk that we’ll all need to wear masks well into 2022, if not forever.
But, then, there’s this: When do we acknowledge that huge spikes — like the one predicted for January — may not necessarily be coming?
When do we acknowledge that our health care systems — which literally were putting beds in parking lots last spring — are now giving the all-clear, encouraging anyone who needs any type of treatment to come. It’s safe, they all say.
George Helmy, the governor’s chief of staff, said the governor’s actions have saved lives and that a state of emergency is still very much needed, especially as the state oversees vaccination.
“In order to comprehensively do that across the entire state, to reach communities of color, to get into senior facilities, you have to have a uniform way of doing it, and that comes within the emergency powers of the governor,” he said.
Health and elected officials weren’t interested in discussing the issue with ROI-NJ on the record. It’s not easy to find people willing to challenge the governor during such a historical moment.
So, we went to someone who could put it into historical context: Princeton University’s Keith Whittington, a highly regarded constitutional expert.
Whittington does not dispute the need for a state of emergency early on — when decisions needed to be made quickly. He said the power was vital and necessary then. He even questioned whether a larger group of officials would have had the temerity to make such tough decisions.
But, he countered, that was last spring — and even last summer — when there still was a feeling that this all was temporary.
“We’re long past that point,” he said. “We’re at point where this is a normal state of affairs. It’s routine life.”
Whittington said he’s surprised legislatures — New Jersey and elsewhere — have not pushed back more.
“Legislatures have had plenty of opportunity to date to assemble and to work out some kind of policy on this, and there’s been no effort to do it at all — almost anywhere,” he said.
“We’ve been doing this for almost a year now. And it’s just remarkable the extent to which legislatures have done very little in reassessing or redeveloping their own frameworks for what we ought to be doing with very basic policy decisions, like: To what degree should we be locked down? And if so, how should we be locked down?
“(Legislatures) just left those things to the executive branch.”
Parimal Garg, Murphy’s chief counsel, pushes back on the idea that there has been one-man or one-branch rule. He points to the numerous lawsuits that have been filed, allowing for judicial review. He points to times the Legislature has codified some of the executive actions — changing some of the parameters in the process.
“There have been checks and balances throughout the pandemic,” he said. “We have faced many dozens of lawsuits. Thankfully, we’ve been able to prevail on all of them, which I think is a testament to the way we structured these restrictions and how we had a coherent rationale for what we were doing that is based on public health principles.
“But, certainly, the courts and the judiciary are a check and balance, and the Legislature continues to be a check and balance as well.”
More so, Garg correctly points out that the powers the governor is using do not come from the U.S. or New Jersey constitutions, but by actions of the Legislature — one of which was signed into law this century.
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The state of emergency power derives from the Disaster Control Act of 1947. The Emergency Health Powers Act, which was enacted in the aftermath of 9/11 and the anthrax terror attacks, was passed in 2005.
Even more, declaring a state of emergency allows New Jersey — and all other states — access to an incredible amount of federal funding. That is a huge benefit.
Whittington, the historian, does not think the forefathers would be pleased.
He said it’s clear that “state of emergencies” is one of the few things James Madison and others did not anticipate well. And Whittington does not think they’d be happy to hear about what’s going on today.
“I think they’d absolutely be horrified,” he said. “I think the idea that you’d have a yearlong state of emergency that would result in such extensive executive control over normal activities in the state would be quite horrifying to them.
“And, I think, in part, they would wonder how, why the Legislature would tolerate such a thing. I think they would question why the other political institutions are failing so badly that they don’t respond.
“State of emergencies, by their nature, ought to be very short-lived. And, so, the idea of having a state of emergency for something like a year would be a very bad sign from their perspective about what the future of your democracy is.”
Helmy obviously feels differently.
The powers the governor is using are helping the state immeasurably, he said.
“The powers bestowed upon the governor and his use of those powers have saved lives,” he said. “Our ability to use those powers and to coordinate a whole of state response is truly like a wartime response — and I don’t say that lightly.”
Even more, Helmy said the ultimate goal is to rescind those powers.
He can’t offer specifics on when — or based on what data, such as a percentage of the population being vaccinated. He does say it remains an immediate goal.
“Anytime you’re going to roll back your executive powers, it’s as soon as you possibly can, but not one minute before that,” he said.
“Everybody’s looking for that day where we don’t need to be under the emergency powers and don’t need to have a wartime effort. But, in New Jersey right now, 2,300 people are in hospitals with serious conditions related to COVID-19 and we announced a significant number of deaths (last Friday). We’re still among the highest in new cases in the country.
“That day is not today.”