President Biden extends 'national emergency' over COVID-19 until March 1, 2023
Legal battles loom over authority of courts to change election laws during a 'state of emergency'
President Biden has sent a letter to Speaker of the House Pelosi that states that
“the national emergency declared in Proclamation 9994 of March 13, 2020, beginning March 1, 2020, concerning the coronavirus disease 2019 (COVID-19) pandemic, is to continue in effect beyond March 1, 2022.”
The extension will continue the 'national emergency' for one more year, unless Biden revokes the state of emergency or Congress changes the law that empowers him to declare such an emergency.
https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/18/letter-to-the-speaker-of-the-house-of-representatives-and-president-of-the-senate-on-the-continuation-of-the-national-emergency-concerning-the-coronavirus-disease-2019-covid-19-pandemic/
The timing of this announcement is noteworthy. Canada has just invoked emergency wartime powers to clear the Freedom Convoy of trucks that were occupying the national capital of Ottawa, and the police have cleared the protesters, street by street. The bank accounts of the protesters and any Canadians who donated money to them have been frozen. This would normally be a terrible time for a US President to extend his own emergency powers, as the 'optics' are bad.
However, Russian President Putin has just announced that he is recognizing two breakaway 'People's Republics' in the eastern Ukraine, which has precipitated a diplomatic crisis. It appears that the Democrats are hoping that they can ‘bury the news’ of their extension of the COVID-19 emergency, from two years to three years, by announcing it during a news cycle that will be dominated by worries over a war in the Ukraine.
This extension may be a ploy to allow the Democrats to continue to change the rules of our elections by clever yet dubious legal maneuvers. The Pennsylvania Supreme Court cited COVID-19 as the reason why they extended the deadline for the counting of mail-in ballots from 8:00 p.m. Tuesday to 5:00 p.m. Friday during the week of the 2020 Presidential election. They furthermore waived the requirement for such 'mail-in' ballots to have any postmark in order to be counted. This directly contradicted the law which authorized such ballots, Act 77, which set a Tuesday deadline and demanded that 'mail-in' ballots needed a legible postmark dated before that deadline in order to be counted as legitimate. Ballots with no postmarks that somehow arrived on the counting tables on the Friday after the Tuesday election were counted as 'timely' and legal. Biden was officially credited with winning the state vote by a 50.01% majority.
This sets up an interesting legal battle over exactly how an 'emergency' is declared for an election. The Constitution of the United States very clearly gives state legislatures the right to regulate elections, but does allow Congress the right to make laws that supersede state laws:
"Article I, Section 4
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."
It is not clear that a federal law that delegates emergency powers to the President can be used by a state supreme court to literally rewrite the laws passed by a state legislature. The PA Supreme Court did this in the last election, citing a declaration of a state of emergency by the Governor of Pennsylvania as a pretext. However, in the 2021 primary election two amendments to the state constitution were passed by ballot initiatives that limited the power of the Governor to declare emergencies.
The first ballot question was 'Shall the Pennsylvania Constitution be amended to change existing law and increase the power of the General Assembly to unilaterally terminate or extend a disaster emergency declaration — and the powers of Commonwealth agencies to address the disaster regardless of its severity pursuant to that declaration — through passing a concurrent resolution by simple majority, thereby removing the existing check and balance of presenting a resolution to the Governor for approval or disapproval?'
The second ballot question was 'Shall the Pennsylvania Constitution be amended to change existing law so that: a disaster emergency declaration will expire automatically after 21 days, regardless of the severity of the emergency, unless the General Assembly takes action to extend the disaster emergency; the Governor may not declare a new disaster emergency to respond to the dangers facing the Commonwealth unless the General Assembly passes a concurrent resolution; the General Assembly enacts new laws for disaster management?'
https://www.dos.pa.gov/VotingElections/Pages/Joint-Resolution-2021-1.aspx
Both measures passed, each with about 52% of the popular vote.
https://news.ballotpedia.org/2021/05/20/pennsylvania-voters-pass-constitutional-amendments-to-limit-governors-emergency-orders-without-legislative-support/
This would appear to limit the ability of the Governor and the PA Supreme Court to use COVID-19 as an excuse to rewrite the law, unless the PA legislature allows such an emergency declaration to stand. If the Governor does declare an emergency, then a simple majority vote by both houses is all that is needed to end it. The PA Supreme Court cited a state constitutional right to respond to emergencies to ensure fair elections as a pretext to rewrite the election law, namely Act 77. These new amendments enable the PA legislature to decide if any state of emergency is valid, and if it is deemed invalid then that will nullify the power of the PA courts to rewrite laws passed by the PA legislature.
The Pennsylvania legislature should make it clear to the Governor that if he declares a state of emergency just before the election, then they will convene and terminate it, if it is not a true and valid emergency. It is rare for a legislature to be in session just before an election of its members, but this process of emergency declarations has clearly been abused in the past, and they should announce to the public well in advance of the election that they won't let it happen again.
That may not suffice, however, as the Democrats could claim that a national state of emergency automatically implies that every state government is also in a state of emergency. It will all depend on the courts, and in 2020 the decision was made by a narrow 4-3 vote in the PA Supreme Court, and that decision was allowed to stand by a rare 4-4 tied vote in the US Supreme Court. Today the Democrats have a 5-2 majority on the PA Supreme Court, and the Republicans have an apparent 5-4 majority on the US Supreme Court. The right to use emergency powers to change election laws in Pennsylvania may once again become a case that is argued before the US Supreme Court on the eve of an election.
If the US Supreme Court allows the use of emergency declarations to empower a President and the lower courts to rewrite state election laws, then there is a huge incentive for them to keep the nation in a state of emergency forever. This would be a huge step away from democracy and towards tyranny, as it is insane to allow Presidents and Governors and Justices to abuse powers reserved for true emergencies to 'game the system' to ensure that their party wins more elections. It is crucial that the public demands that an 'emergency' shall not last forever in the United States of America, or in any state in America.