(The Center Square) – A recent, steady rise in COVID-19 hospitalizations is fueling speculation federal officials could return to mask mandates this fall, though North Carolina laws that took effect this year put new limits on the governor’s unilateral authority to impose public health restrictions.
COVID-19 hospitalizations increased for five consecutive weeks to 12,613 new admissions for the week of Aug. 12, up more than 21% from the week prior, according to data from the Centers for Disease Control and Prevention.
This week, Morris Brown College in Georgia and Lionsgate, a major Hollywood Studio, brought back mask mandates. Rutgers and Georgetown are universities requiring masking indoors, according to No College Mandates, a group that tracks COVID-19 policies in higher education.
The uptick remains three times lower than last year and six times lower than in 2021. The CDC is headed by former North Carolina Department of Health and Human Services Secretary Dr. Mandy Cohen, a staunch advocate of masking and keeping people from gathering.
The state’s Emergency Management Act in 2020 was used to impose masking and restrictions, such as when people could leave home, attend school, and which businesses could open. Even houses of faith were restricted. A state of emergency lasted 888 days.
The edicts prompted lawmakers, led by the Republican majority, to approve several bills to limit the governor’s authority during a declared emergency. All were vetoed by Cooper until he signed a budget bill in November 2021 that included a series of changes.
The relevant provisions, which went into effect on Jan. 1, require more agreement from statewide elected officials on the Council of State, and changes when they must consult with the General Assembly to extend a state of emergency. The 10-member Council of State consists of the governor; lieutenant governor; attorney general; secretary of state; the commissioners of labor, agriculture, and insurance; and the state’s auditor, superintendent of public instruction and treasurer.
The new law requires “consensus, within 48 hours of contact, of a majority of the Council of State prior to the Governor exercising a power or authority requiring concurrence of the Council of State.”
If Council of State members do not respond within 48 hours, the law deems their vote a concurrence.
Further, the law tasks the governor with documenting the contact and response of each member and posting those responses by name and position on the same website in which executive orders are published.
The change limits any governor’s ability to unilaterally impose emergency powers or restrictions without a consensus from the bipartisan council.
Other aspects of the law define a statewide emergency as any that’s applied to two-thirds or more counties, and restricts how long an emergency can last.
A declared state of emergency would automatically expire after 30 days without approval from a majority of council members, who could extend the state of emergency to 60 days. Beyond that, the General Assembly must approve an extension by passing a law.
The new provisions also prevent any governor from circumventing the General Assembly or Council of State, stating the governor may not “include a substantially similar declaration of emergency arising from the same events that formed the basis to issue the initial declaration of emergency that was not extended.”
North Carolina’s restrictions on emergency powers earned a score of 66 on the Maine Policy Institute’s Emergency Powers Checks & Balances Scorecard 2023. The scorecard uses a 1-100 scale to award the highest scores to the greatest safeguards of liberty through legislative counterbalance to the governor.
North Carolina’s score is tied with Arkansas for the eighth highest figure, behind South Carolina at 83, Kansas at 81, New Hampshire and Minnesota at 76, Montana and Utah at 73, Alaska and Michigan and Georgia at 71, Pennsylvania at 69, and Kentucky at 67.
