When New Jersey’s Governor Phil Murphy declared a health emergency in March 2020, I had no idea of the scope of this law. As it turned out, the law not only allows a governor to commandeer dictatorial powers to rule by executive order without any legislative approval or oversight, but to extend the emergency in 30-day increments in perpetuity.
Murphy has taken full advantage of this law. New Jersey still exists under a health emergency -- and Murphy’s powers. Yes, the state is “opening up.” But only with Murphy’s approval.
As I’ve observed before, this law is blatantly unconstitutional, under both the U.S. and NJ constitutions, both of which Murphy swore to uphold. Right. So much for NJ’s oath of office.
NJ legislators, first Republicans, then increasingly Democrats, have been grumbling in growing proportions over the past year. Now, they are finally beginning to do something about it. They are negotiating with Murphy on a plan to end the health emergency. As Brent Johnson reports in the New Jersey Star-Ledger for NJ.com, a first attempt failed. A second “compromise” bill is set to be voted on:
The second try is similar to the first one, but with a few notable changes, including new provisions increasing some access to public records and stripping immunity protection from hospitals and nursing homes sooner than planned. Another would prevent the governor from installing mask and social distancing restrictions that go beyond federal guidelines unless there are major upticks in the state’s coronavirus numbers.
The proposal (A5820/S3866) — which the governor’s office had input on — would wipe away most of Murphy’s nearly 140 pandemic executive orders, yet keep 14 of them in place until Jan. 1. Moratoriums on evictions and utility shutoffs are among the orders that would remain, though Murphy would be permitted to revoke or reduce them at any time.
Though the bill allows Murphy to keep certain executive orders in place, at his discretion, the bill says that at the end of the period, Murphy can extend his orders by 90 days, but must get legislative approval for that. So at least the idea of legislative oversight enters the dialogue. Any small step back toward constitutional government is welcome.
But this whole exercise misses the big picture. The Republicans, who oppose both bills, seem to have a better handle on the issue. “Republicans have long complained that Murphy wielded too much control without legislative oversight as he lifted restrictions more slowly than other states,” Johnson reports.
And that’s the crux of the issue. The emergency powers law that Murphy exploited is in direct violation of the NJ Constitution, which I have observed authorizes only the legislative branch to make law.
It is absurd that the legislature has to “negotiate” with a power-hungry governor on getting its own constitutionally guaranteed powers back. But the legislature put itself in this position, by passing its emergency powers law. Sadly, the law was never overturned—probably never even challenged—by the NJ Supreme Court. The legislature should abolish or alter this law by veto-proof majorities, and write new law that requires legislative oversight. With Democrats controlling both houses of the NJ legislature, this apparently won’t happen. The Democrats simply won’t overrule the Democrat Phil Murphy, one of their own.
Perhaps after the pandemic is long gone, NJ Democrats will come to their senses and do the right, American, thing and never again allow any governor to seize dictatorial powers rationalized as a health emergency.
Related Reading:
Michigan’s Supreme Court Show’s NJ the Way on COVID and the State Constitution
Michigan Supreme Court Strikes Down Gov. Gretchen Whitmer's COVID-19 Executive Orders by Bill Binion.
‘Hate’ and Authoritarianism in New Jersey: Much Worse than Pollster Patrick Murray Acknowledges
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