The Executive Branch
The Executive Branch is made up of the Governor, other state-wide elected officials like the Treasurer, and most of the state agencies, including the Washington State Patrol. The most important thing to understand is while the Governor does have the power to sign or veto legislation, the Executive Branch is not supposed to be the lawmaking body – they are supposed to carry out laws made by the Legislature. The name stems from the fact that it is the branch that “executes” the law. It’s one of the checks and balances we have in our state government.
Unfortunately, over the years, the legislature has ceded a great deal of power to all parts of the Executive Branch.
One such power is the ability to proclaim an emergency and all the power that goes along with that. The law was enacted in 1969, likely because of the cold war and fear of a nuclear strike. This was a time when technology was in its infancy, and the concern was about continuity of government if legislators couldn’t access the Capitol.
Of course, things have changed, and my guess is the legislators who passed that bill in 1969 never dreamed a Governor could abuse the power like our current one obviously has over the past year and a half.
There are many legislators who were adamantly opposed to the continued state of emergency that was declared by the Governor during COVID. But they could do little other than to try to persuade either the Governor to call them back into a special session or to convince a 2/3 majority of all legislators to call a special session. Those are the only two options allowed by the Constitution.
Unfortunately, during the entire State of Emergency, the Democrat majority in the Legislature refused to work with Republicans to make any changes. The Emergency Powers law still exists the same today as it did during COVID, so we could end up in the same situation at any time. The Constitution does give the law-making authority to the Legislature, as most people know. But the Legislature has spent many years giving up that authority by passing laws ceding authority to others.
Rules with the force of law
Agencies have also had much power ceded to them. A bill might be passed that provides a general goal but then gives all power to the agency to enact rules to achieve the goal. The rules do have the force of law, because the legislature passed a bill giving agencies authority to implement the law according to their own rules.
For example, the Legislature might pass a law directing the Department of Fish & Wildlife to protect the wildlife in a particular area. They provide the goal - to protect the wildlife - but then they allow Fish & Wildlife to come up with how that will work, even if the methods aren’t exactly what the legislators who passed the bill had in mind.
Instead of spelling out the details in legislation, having hearings, and requiring a majority vote on those details, the legislature cedes the power to the agencyto make the rules that are then enforceable by law.
The Legislature will often pass a bill in future sessions that requires an agency to change rules that it has made, and of course, the legislature still has the power of the purse. Unfortunately, that threat is only effective if there is a very close division between parties in the Legislature. If there is a substantial majority of one party, the threat of reining in agencies using funding is greatly reduced.
The current situation we have in WA State brings to mind a statement from the Declaration of Independence. That statement was directed at King George, but it applies today. If this quote is unfamiliar to you, I would challenge you to read the list of offenses against King George. You will likely find many similarities.
“He has erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance.”