A Connecticut Superior Court judge weighed the limitations of Gov. Ned Lamont’s ongoing emergency authority Thursday during a hearing on a lawsuit challenging one of the state’s pandemic-related public health orders.
Judge Thomas Moukawsher is considering the future of a complaint contesting the state mandate requiring students and teachers to wear masks in public schools to slow the spread of the COVID-19 virus.
During a virtual hearing Thursday, the judge reflected on the impact of a state Supreme Court decision in a similar case, which in December affirmed Lamont’s emergency authority. Did that ruling make the case before him a moot issue, he asked.
Moukawsher previously ruled that masks do not — as the plaintiffs had claimed — represent an imminent threat to school children. But the judge seemed intent Thursday on examining a separation of government powers question at the heart of the case. The group seeking to strike down the mask requirement argues the state legislature has essentially ceded its constitutional authority to the governor under emergency declarations stemming from the pandemic.
On Thursday, the judge weighed some developments on that front in the weeks since the Supreme Court ruling. During that time, the General Assembly has come back into session and Lamont has extended his emergency authority until April 20 without interference from the legislature. The emergency declarations had previously been scheduled to expire this week.
“If there’s any extension, it’s only with the permission of the legislature. If there are any executive orders the legislature don’t like — cast a vote on it,” Lamont said last month when he announced his intent to extend the emergency.
Questioning lawyers on both sides of the case, Moukawsher asked whether there are limits to how long a governor could hold onto emergency authority, if the legislative branch continued to allow it.
“If the General Assembly was simply content to let it go on and on and not challenge the governor’s declaration … and simply let him keep renewing it in six months perpetually, that would violate the constitution, would it not?” the judge asked.
If the basis for the original emergency had dissipated, there would no longer be a need for ongoing emergency authority, Assistant Attorney General Timothy Holzman said. If the governor then continued to declare emergencies, at that point, a court intervention would be appropriate, Holzman said.
The judge offered some hypothetical situations where an emergency could continue in perpetuity. What if we had entered an “age of viruses” that would persist for years? What if the common understanding of what constitutes a disaster shifts to the point where the state is always in a disaster? Words like “disaster” and “emergency” can be flexible, the judge suggested.
“I give these examples because I remember that we enacted in 1992, a statute that forbade the increase in spending in the state unless the governor declared an emergency and every year thereafter, the governor declared an emergency and the constitutional spending cap was circumvented,” Moukawsher said.
Holzman conceded that it was possible to imagine situations where the governor could go too far, but he argued the state was not in one of those situations.
“I would suggest, respectfully, we’re a thousand miles from those hypotheticals in this particular case,” he said.
Moukawsher said he was troubled by the idea that a branch of government could indefinitely give up its authority if everyone agreed the state was in the midst of a serious disaster or emergency.
“The General Assembly can simply abdicate its authority? That just strikes me as somewhat worrisome. Not that I have a fixed view about it, but it’s worrisome,” he said.
Norm Pattis, a lawyer representing the plaintiffs, disputed whether the ongoing COVID-19 pandemic, which as of Wednesday had killed more than 7,300 Connecticut residents, constituted a continued serious disaster. He also suggested Moukawsher’s hypothetical scenarios involving permanent disasters were not far-fetched.
“There have already been calls among legislators to recognize ‘systemic racism’ as a public health emergency,” he said. “It would be a short step to go from here to declare global warming to be such.”
Holzman reminded the court the legislature was free to intervene in any of the governor’s executive actions if they deemed the actions inappropriate. “There is nothing stopping them,” he said.
Pattis wrapped up his comments by citing the ongoing second impeachment trial of former President Donald Trump. Pattis called Lamont “monarchical” and wondered whether it would be appropriate to impeach him. In another window of the virtual hearing, Assistant Attorney General Darren Cunningham rolled his eyes.
“We’ve flirted with a too-robust executive power at this state and now it’s coming home to roost,” Pattis said. “Do something about it, Judge.”
Moukawsher said he would review briefs from both sides and issue a ruling as soon as possible.