West Virginia House Takes Up Amendments To Bill That Would Reel In Governor’s Emergency Powers

Lawmakers in the West Virginia House of Delegates debated amendments to a bill that would make changes to the governor’s emergency powers. The lower chamber adopted one amendment to the bill Thursday and considered another that had been on a winding road before it was rejected.

House Bill 2003 would limit a state of emergency declaration to 60 days. It would also allow the Legislature to extend that declaration 30 additional days or remove the declaration altogether.

The measure comes as the state is now in an 11-month long state of emergency related to the ongoing coronavirus pandemic. With the bill on second reading in the House Thursday, lawmakers considered amendments on the floor.

Del. Nathan Brown, D-Mingo, offered an amendment that would protect freedoms of religion in the midst of a state of emergency.

“The First Amendment to the Constitution says, ‘Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.’ In my mind, a state of emergency or state of preparedness is not a law,” Brown said. “I just want to erase any gray area that may be there for future governors or our legislators.”

After a brief debate, the House adopted Brown’s amendment on a 94-4 vote.

But most of the attention on amendments was focused on a proposed change offered by Del. Pat McGeehan, R-Hancock.

McGeehan once again offered an amendment that would add a single line to the end of the bill: “Upon passage, any state of emergency or state of preparedness currently in effect are subject to the provisions of this section.”

McGheehan explained his amendment on the floor.

“What my amendment does is make it clear that this [check on the executive powers] bill applies to the current state of emergency,” he said.

The House Judiciary Committee initially adopted McGheehan’s amendment during a Saturday meeting before reversing course on Monday.

House Judiciary Chairman Moore Capito, R-Kanawha, spoke in opposition of McGeehan’s amendment during the Thursday floor session. Capito noted that a small workgroup of lawmakers got together months before the start of the session to craft the bill.

“Nothing in this bill precludes application of the law to any existing state of emergency or state of preparedness,” Capito said. “And as I said, we take careful deliberation, we carefully construct amendments and law. Because, my preference is to craft policy that makes an impact — not policy that proves a point.”

Capito argued that McGeehan’s amendment would make the legislation “cloudy” and eventually make its way to the courts over the ambiguity of the word “passage.”

“I don’t know what passage means. Does it mean passage from this body? Does it mean passage from that body? Does it mean when it’s signed by the governor?” Capito said. “Sounds like a question that needs some interpretation.”

Various members of both parties came to McGeehan’s defense throughout the course of debate on the floor Thursday. Del. Chris Phillips, R-Barbour, was one of the lawmakers who sat on the workgroup Capito mentioned.

“Currently, we’re almost a year into this emergency — so the situation is no longer emergent. And I think that this body has every right as a co-equal branch of government to make our voice heard and exercise our status as a co-equal branch,” Phillips said. “I support the amendment.”

Others who sat on the workgroup, including Del. Barbara Fleischauer, R-Monongalia, also spoke in favor of the amendment.

“I don’t think it harms anything at all to say that this law applies right now,” Fleischauer said. “We can all disagree about legal issues. But I think ‘upon passage’ is pretty clear that we want this law to apply to the current situation and to future situations that we defined very carefully.”

In closing, McGeehan urged delegates to consider a situation in which the governor’s political affiliation was different from the party in control of the House. He also asked members to consider the powers that Justice has wielded over the course of the pandemic.

“There’s been, as far as I know, no talk of when the state of emergency will end. If we don’t apply this check to executive power now, then it’s at the executive branch’s discretion as to when it’s going to end and what they can do,” McGeehan said. “And we’ll continue to have no input.”

However, McGheehan’s amendment was rejected on a 47-51 vote.

House Bill 2003 now advances to third reading and will be up for passage on Friday.