Governor Jay Inslee’s proclamation requiring that all public employees and some private healthcare workers in the state get vaccinated by next month has reignited debate over executive authority, the indefinite use of emergency powers, and the potential long-term use of such authority regarding other issues.
“This is why policy should be made through the legislative process,” Washington Policy Center Government Reform Director Jason Mercier said. “That’s how we expect our governance to work in this country and this state. Folks need to look at the situation beyond Covid. Covid is what is before us right now, but these are questions about structural separation of powers and how we’re supposed to be governed.”
For some government reform advocates, much of the problem is rooted not in the actual policy but rather in its adoption via a “quasi-personal rule” made possible by Washington’s state of emergency law. Under that law, the governor can unilaterally declare a state of emergency and can also independently decide when the emergency ends. Meanwhile, the law grants the governor enormous power, as most recently highlighted in a recent court case regarding Inslee’s eviction moratorium. Though the plaintiffs claimed the extended moratorium violated the contractual agreement between housing providers and tenants, the judge ruled that it did not.
The ruling could have implications for a lawsuit recently filed by the Washington Federation of State Employees (WFSE), which claims the governor’s vaccine mandate issued earlier this month constitutes an unfair labor practice because it alters a collective bargaining agreement (CBA) mid-contract. In an Aug. 13 letter to the state Office of Financial Management, WFSE Executive Director Leanne Kunze wrote that the state had a duty to bargain with unions over the issue.
According to the court documents, the union representatives later unsuccessfully tried to negotiate with state officials over the mandate. “The State offered no proposals whatsoever, and never indicated its authority or willingness to consider modification of the provisions of the Proclamation.”
The lawsuit warns that, if allowed to stand, “the statutory, contractual, and constitutional rights of the WFSE and the employees it represents will be irreparably harmed.”
At the same time, public agencies including local fire departments and the Washington State Patrol have warned of a “mass exodus” if they’re forced to fire employees who don’t get vaccinated.
In an Aug. 25 letter to Inslee, House Minority Leader J.T. Wilcox (R-2) and Senate Minority Leader John Braun (R-20) requested clarification as to the mandate, writing that “It is critical for legislators to know how the state and other Washington employers are expected to proceed.”
Both Mercier and Wilcox said that had Inslee proposed the mandate via the legislative process it would have passed. However, both believe it would have allowed open dialogue with stakeholders over potential concerns now being raised after the fact. Under the state’s legislative process, bills require a notice period of 5 days before a public hearing is held. Bills are also not allowed to be introduced too far into the legislative session, though lawmakers frequently evade it using “title-only bills,” a practice that has been ruled legal.
While the concept of granting unlimited emergency powers to one person has been debated, and concerns raised about the slippery slope this creates, the Tri-City Herald editorial board in a recent opinion piece portrayed it in a positive light. “We elected people to represent us in the Legislature who legally transferred unlimited emergency powers to the governor. Now, listening to the advice of health experts, Inslee is legally issuing mandates to tackle an emergency that the Legislature declared. How much more democratic could that be?”
However, Wilcox views it as more of an abdication of legislative responsibility, adding that legislators only approved some of Inslee’s proclamations. “The legislature has no role in declaring an emergency. That’s one of the problems that we have here. Whether you’re Republican or Democrat you should value the fact that we have this thing set up so too much power is not monopolized by one branch. That is failing right now.”
Mercier also notes that the emergency laws were written with things in mind like floods, invasion, or volcanic eruptions involving a communication breakdown. “To me, the reason you have emergency…when it’s impossible or impractical for the legislature to address it. It’s not supposed to be a situation where it’s ‘here’s the keys to the car and you can do whatever you want for however long you want.’”
With the ongoing state of emergency now lasting a year and a half, Wilcox said that “the longevity of the emergency never came up before. I’ve said many times these laws have been stress-tested and in many ways have failed and they should be modified. We would be better governed in Washington if the legislature had to review all of these (proclamations). I have all along maintained I don’t think the governor has been willing to consider the cost. I’m not only talking about money. I’m talking about human cost, the process of our government.”