The Quiet Consolidation of the Governor's Office

The most consequential shift in American government over the past twenty years did not happen in Washington. It happened in the fifty buildings where state legislatures meet for a few months a year and then go home.

Legislatures are part time by design. The framers of most state constitutions assumed that citizen lawmakers would gather, pass a budget, and return to their farms and firms. What they did not anticipate was a governing environment in which decisions arrive faster than a legislature can convene. Storms, outbreaks, cyber incidents, refinery fires, and financial shocks all demand a response measured in hours. A body that meets in January and adjourns in April cannot supply one.

So legislatures did the practical thing. They delegated. They wrote statutes that let a governor declare an emergency, suspend regulations, redirect funds, and issue orders with the force of law. Each grant was reasonable on its own terms. Taken together, over decades, they built an executive branch that can act without asking.

The ratchet only turns one way

The pattern is consistent enough to be predictable. A crisis arrives. The governor uses existing authority and finds it insufficient. The legislature returns for a special session and grants more. The crisis passes. The grant stays on the books.

There is rarely a villain in this story, which is part of why it attracts so little attention. Nobody seizes anything. Lawmakers of both parties vote for the expansion, usually unanimously, usually while the emergency is still on the evening news. The cost of voting no is immediate and personal. The cost of voting yes is diffuse and arrives years later, in an administration nobody has met yet.

Authority granted in a panic is inherited by a successor who did not live through the panic and does not feel bound by its logic.

That inheritance is the real subject. Emergency power written for a hurricane is available for a budget dispute. Power written for a public health crisis is available for a fight with a city council. The statute does not know what it was for.

What the courts will and will not do

Judicial review has been an uneven check. State supreme courts have generally been willing to police the outer edge, striking down orders that plainly exceed the text of the enabling statute. They have been far more reluctant to question the statute itself, because the legislature wrote it and the legislature can repeal it.

That reluctance is defensible as a matter of doctrine and unhelpful as a matter of practice. Repeal requires a legislature to take something away from a sitting executive, usually of its own party, usually in an election year. It happens, but it happens rarely, and it happens most often when the governor belongs to the other side.

The result is a body of law that responds to partisanship rather than to structure. Restrictions get written when the wrong person holds the office and get quietly relaxed when the right one arrives.

The case for sunsets

There is an unglamorous fix, and a handful of states have adopted versions of it. Attach an expiration date to every emergency grant. Require an affirmative vote to renew. Set the default to lapse rather than continue.

Sunset provisions are not a magic constraint. Legislatures renew things reflexively, and a governor with a friendly majority can get a renewal without breaking stride. But the vote itself does work. It creates a moment where someone has to defend the authority in public, on the record, at a time when the emergency is no longer on television. That is often enough to shrink the grant to something closer to its original purpose.

The broader point is that a legislature which never has to reconsider what it has given away will keep giving. Institutions do not defend themselves out of habit. They defend themselves when the calendar makes them.

A slow answer to a fast problem

None of this resolves the underlying tension. Governing genuinely is faster than it used to be, and a deliberative body genuinely is slow. Some delegation is not a failure of the system, it is the system adapting to conditions the framers of state constitutions could not have imagined.

But adaptation has a direction, and right now the direction runs one way. Every crisis moves authority toward the executive, and nothing moves it back. A legislature that wants to remain a coequal branch has to build the return trip into the law itself, because it will never find the political will to make the trip voluntarily.

The office of governor was designed to be a chief executive with limited independent power. It has become, in most states, the only part of the government that can move quickly. That is not a scandal. It is a structural fact, and it will not correct itself.