EVANSVILLE - Citing emergency powers conferred on him by the legislature in the “Emergency Management and Disaster Law” (EMDL), Gov. Eric Holcomb will issue an executive order mandating face mask usage statewide effective July 27. Failure to abide by the order could result in a Class B misdemeanor. 

Can he do this?

Mandating masks is a legislative power entrusted to the legislative branch, not the governor. But what happens when the legislature willingly delegates those powers to the governor? That’s precisely what the Indiana General Assembly did in the EMDL several years ago — it provides a centralized and streamlined emergency response in the executive branch allowing the state to act more quickly and efficiently than the normal legislative process. In other similar situations, courts have consistently concluded that the legislature may delegate much of its powers to the executive if it chooses to do so, particularly in an emergency.

Ironically, certain legislators — State Reps. Curt Nisly, Christopher Judy, and Matt Hostettler among them — now question the governor’s authority. They’re right to be concerned. The governor may declare — without any input or authorization from the legislature — a disaster emergency and immediately obtain sweeping authoritarian powers. Our governor may be acting reasonably now, but imagine your worst political enemy holding that office and suddenly grabbing such sweeping power. 

Would you be OK with a Hoosier version of either Donald Trump or Alexandria Ocasio-Cortez wiedling such power? Today it’s a seemingly benign face mask; in a future administration it could be gestapo paramilitary tactics. Wouldn’t you like better checks on that?

When emergencies arise, a natural tension develops between the need for prompt and efficient action on the one hand, and the desire to be bound by checks and balances on the other hand. Legislators scrambling to complain about emergency powers in front of news cameras rarely discuss (or get asked about) their ability to control it via legislation.

For generations now legislatures neutered themselves at both the state and federal level. By handing over responsibility and authority, the legislature makes itself not the parent of legislative policy, but a secondary player often forced by its own inadequacy to tinker at the edges with what executives demand. We can argue over whether courts were right to let the legislature do that, but either way the legislature is welcome to reassert its intended role. If legislators believe they created an imbalance of power during emergencies, it’s up to them to fix that. 

In the meantime, they’ve empowered Gov. Holcomb to continue issuing these types of orders.

Claybourn is an Evansville attorney.