To Prepare for Emergency, States Must Resolve Constitutional Ambiguities

State governments have long recognized the need for emergency preparedness and taken steps to ensure the continuity of government even in worst-case scenarios. But it’s unclear whether these prior efforts are tailored to the threats we face today and will face in the future.

Emergencies like storms, cyberattacks, and viruses seem to happen with greater frequency these days, and to make matters worse, the severity of these and other disasters appears to be increasing.

One of the most important and least studied legal mechanisms for states to respond to emergencies is buried in 35 different state constitutions. Known as continuity-of-government provisions, these oft-neglected yet expansive sources of power deserve more scholarly and popular attention. Using language drafted by the federal government amid concerns that a nuclear attack could eliminate many, if not all, of the members of a single state legislatures, states across the country amended their respective constitutions at the height of the Cold War to give legislatures broad powers in the event of an emergency.

Though the provisions differ slightly from state to state, most don’t stray far from the federal model. The model language grants legislatures, “in periods of emergency resulting from enemy attack,” the “power to provide for prompt and temporary succession to the powers and duties of all public offices the incumbents of which may become unavailable to execute the functions of their offices, and to adopt such other measures as may be necessary and appropriate to insure the continuity of governmental operations during the emergency.”

Each state to adopt the provision allows the legislature to “depart from other requirements of this constitution” when exercising these powers, “but only to the extent necessary to meet the emergency.”

This language has the potential to authorize a wide range of government actions upon an “enemy attack.” The first clause empowers state legislators to quickly and unilaterally fill any vacancies in public offices. It also grants legislators the ability to adopt all measures “necessary and appropriate” to operate the government “during” the emergency. The second clause likewise contains a significant grant of power — a qualified exemption from complying with the constitution. 

The good news is that these powers have rarely been invoked. In fact, there may be just one successfully invocation: during the initial response to the Covid-19 pandemic, the Delaware legislature relied on the state’s continuity-of-government provision to alter election procedures. The bad news is that courts have not had an opportunity to clarify the ambiguity in these provisions. Questions abound. Is “enemy” confined to foreign governments or may it also apply to domestic or non-state groups? When is an incumbent official “unavailable” to perform their responsibilities? What does it mean for a measure to be “necessary and appropriate” to maintain government operations? Are there any limits to the extra-constitutional actions that may be “necessary to meet the emergency”?

Perhaps most importantly, who gets to decide each of these questions and are their answers subject to judicial review?

Drawing the line between the appropriate and inappropriate use of such powers is no easy task. On the one hand, their existence may provide state governments with the legal authority necessary to take bold measures during crises. As illustrated during the height of the Covid-19 pandemic, clear legal support for emergency actions helps maintain the legitimacy of the government in the eyes of the public and, as a result, may facilitate more effective and efficient responses. On the other hand, excessive or frequent use of emergency powers may sow the seeds of government distrust.

If these provisions are narrowly interpreted — as safeguards against nuclear strikes launched by foreign governments — then fears of government overreach may partially subside. Yet, that answer raises another essential question: Do we have adequate legal and policy frameworks for responding to today’s threats and those on the immediate horizon, such as AI-enhanced cyberattacks, novel bioweapons, and the like?

Right now, during a time of relative tranquility in many states, is the right moment for analysis of continuity-of-government provisions and all related questions. As Max Radin, a legal scholar in the early 1900s, pointed out, “There is a strong tendency in time of war for many sober citizens to demand a severer, harsher, more drastic and more expeditious enforcement of all types of police regulation than they would endure in time of peace.” The questions raised cannot sit on the back of our societal to-do list.

The Santa Clara High Technology Law Journal recently published my own analysis of one such question — specifically, who should have the power to declare emergencies under continuity of government provisions? I conclude that independent commissions should be created to exercise that incredible power. Alternative approaches, such as allowing legislators themselves to announce the beginning and end of periods of emergencies, increase the odds of unacceptable outcomes like emergencies being exploited for political benefit.

Much more analysis is required and not just by politicians and lawyers. An inclusive process should inform the proper scope and timing of emergency action. These discussions must include individuals from diverse perspectives, in particular, individuals from a range of professional and personal backgrounds.

Kevin Frazier is an assistant professor at St. Thomas University College of Law and an executive director of the Center for Law and AI Risk.