Lawmakers Push Bills To Free Counties From COVID Restrictions

By Andrew Dunn
Carolina Journal News Service

RALEIGH — Lawmakers in the General Assembly have filed a series of bills that would exempt counties they represent from some or all of Gov. Roy Cooper’s COVID restrictions.

These so-called “local bills” only apply to a small number of counties each. But unlike statewide legislation, these bills don’t require the governor’s signature to become law.

Rep. David Rogers, R-Rutherford, has filed the most sweeping of these bills. Under House Bill 166, measures taken by the governor during a state of emergency would only be valid in Rutherford and Polk counties if approved by the Council of State or by the majority vote of the county commissioners.

Should it pass, current executive orders related to the coronavirus pandemic would cease to be valid after two days.

The bill appears to be a response to a quirk of North Carolina’s Emergency Management Act, which gives the governor broad power to craft prohibitions and restrictions during a declared emergency. He is legally allowed to require evacuations, control prices, regulate gatherings, and restrict traffic.

The act includes a provision that the governor must get concurrence of the Council of State to exercise some of these powers. However, the act later has a contradictory subsection that appears to give the governor sole discretion.

This discrepancy in the law was the subject of a lawsuit brought by former Lt. Gov. Dan Forest against Cooper last summer. Forest challenged some of Cooper’s executive orders, saying they required the approval of the Council of State. A judge disagreed, ruling that N.C. law gave the governor virtually unchecked power during an emergency.

A state of emergency declared by the governor stands until the governor rescinds it.

This House bill is the first legislative measure of the current session that would rein in the governor’s powers under the Emergency Management Act.

But a spokesman for Senate President Pro Tem Phil Berger, R-Rockingham, implied that a statewide bill to revisit the act could be in the works.

“Reining in the governor’s emergency powers is a priority for this session,” Pat Ryan told Carolina Journal. “One person, whether it be the governor or any other political leader, should not have unilateral power to shut down the entire state with no checks or balances.”

House leaders are also planning to address the issue, as well. A spokesman for House Speaker Tim Moore said the House would likely reconsider last session’s Senate Bill 105, which would require concurrence of the Council of State for the governor to use most of his emergency powers. The bill was passed by the General Assembly but vetoed by Cooper.

“This approach provides valuable input from the 10-member Council of State established in North Carolina’s constitution, instead of allowing a single executive to make decisions that have harmed families’ educational and economic wellbeing for nearly a year,” Moore spokesman Joseph Kyzer said.

Other local bills would permit more people to attend outdoor high school athletic events.

Called the “Students, Parents, Community Rights Act,” these bills would allow 50% capacity at outdoor sporting events. Until this week, these events were capped at 100 attendees per Cooper’s executive orders. His most recent order raised that to 30% capacity.

Three different local bills with these provisions would affect some two dozen counties. A statewide version of this bill, SB 116, is pending but is subject to the governor’s veto.

Other local bills in this vein would allow more people to attend high school graduations in seven Piedmont counties and reopen schools in five districts across several regions.

A statewide school reopening bill is awaiting a signature or veto.

None of the local bills have made it to a vote of a full chamber yet. Ryan, in Berger’s office, said lawmakers are usually given “wide deference” when it comes to bills affecting only their districts.

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