Friday, May 15, 2020

A Disaster Law Is Not Supposed To Mean A Law That Is A Disaster

While reexamining Indiana's "Disaster" law (IC 10-14-3) regularly over the past few months, I found the quantity and severity of its defects to be alarming.  (I had already read it a few years ago and was troubled by it then as well, but for some reason, I did not expect most of it to ever come into use.)

In addition to being objectionable, however, parts of it somehow felt as though they were somehow out of place -- they just don't fit.  I have already discussed that one of its provisions (IC 10-14-3-12(d)(1)), which purports to give the Governor of Indiana the power to suspend certain statutes during a "state of disaster emergency", is directly contrary to Section 26 of Indiana's Bill of Rights (as well as to the republican form of government itself).  It certainly is conceivable that legislators who had read Indiana's Constitution would vote for legislation that claims to grant a power that the constitution itself explicitly prohibits, but I still find it surprising that they would have done this so openly.

I have not mentioned that it also contains a provision, IC 10-14-3-12(a)(2) that supposedly grants the General Assembly the power to terminate a "state of disaster emergency" (once the Governor has proclaimed one) by passing a concurrent resolution to that effect.  For two reasons, I think it is strange that the General Assembly would have attempted to grant itself that power.

The first reason why I find that strange is that assuming that it is in session, the General Assembly has innate power to accomplish that legislatively (considering that the Indiana Governor's veto is little more than ornamental), even without the Indiana Code affecting to give the General Assembly a non-legislative check on one of the Governor's powers -- a power which presumably was intended to pass for "executive" in character, by the way, or else it would not have belonged in the hands of the Governor.  It would have been strange if anyone familiar with the Indiana Constitution wrote that.

The second reason why it would be strange to give the General Assembly that power is that if its purpose really was to create a "check" on the Governor's ability to maintain a "state of disaster emergency" indefinitely, then making the General Assembly the entity to which that check is entrusted would defeat that purpose.  The Indiana General Assembly is only in session for a few months of every year.  The Indiana Constitution does provide for the possibility of special sessions of the General Assembly, but only the Governor has the power to call a special session.  For most of the year, every year, the body to which IC 10-14-3-12(a)(2) gives a check on the Governor's "disaster emergency" powers is incapable of using it.  What is the purpose of creating a check that can only be used for (approximately) the first three and a half months of an odd-numbered year and the first two months of an even-numbered year?  Again, it is as though the author knew nothing about Indiana's government.

About a week ago, I started to look at the "disaster" emergency laws of a few other states, and it became immediately obvious that many of the states (including Indiana) had based their own respective versions on a common source.  I now know what that source was: the "Example State Disaster Act".

It was developed in the early 1970s by the Council of State Governments and something called "the Disaster Project", in conjunction with the Nixon Administration.  The Indiana General Assembly apparently gave little thought to it before passing it into law -- not even what little would have been required to adapt it as needed to fit Indiana's government, much less the attention that it ought to have given to how much of this "Example State Disaster Act" could be tolerable to a free state.

In the immediate future, Indiana must focus on convincing its Governor to call a special session of the General Assembly.  That way, it will have the opportunity to use the legislative power to do what can only be lawfully done by the legislative power.

After that, IC 10-14-3, which is a disaster of its own kind, should be replaced with something good.

An Additional Thought (10:31 AM EST, May 15, 2020): Concerning the Indiana General Assembly that enacted a poorly-adapted version of the "example" act discussed above: the General Assembly that took that action did so decades ago.  This weekend, I may try to identify precisely when this foreign object was dropped into Indiana law, but I am fairly confident that it happened either before or shortly after I was born, and I know for certain that it took place during the Twentieth Century.  I ask that those who are reading this refrain from angrily contacting or criticizing the present-day Indiana General Assembly or its members while under the mistaken impression that they were responsible for this.  Feel free to inform them prospectively of their responsibility to correct it, however.

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