Thursday, May 28, 2020

It's Because Some of the Governor's Emergency Powers are World War II Relics

I previously discovered the reason why so much of Indiana's "Emergency Management and Disaster Law" (IC 10-14-3) did not seem to have even been written for Indiana: much of it was in fact not written for Indiana, but was rather taken from the "Example State Disaster Act", a specimen of model legislation created by the Council of State Governments (once it was commissioned by the Nixon Administration to do so).  The iteration of the Indiana General Assembly that enacted an unsatisfactorily modified version of the example act seems to have done so in 1975, and its inattention to detail in adopting and adapting the example act is the reason why so many parts of the corresponding content in IC 10-14-3 do not fit Indiana for one reason or another.

(Because so much of the content of IC 10-14-3 refers to it as "this chapter" -- by which it means "Chapter 3" of Title 10, Article 14 of the Indiana Code -- I have decided to start referring to that chapter as "Chapter 3".  There is a risk that this will cause more confusion instead of less, but I have decided to take that chance.)

However, though many parts of IC 10-14-3 ("Chapter 3") were plainly derived from the example act, that chapter also contains quite a bit of material that the example act leaves unaccounted for.  Some of it probably is, in fact, the cumulative product of an unknown number of bills, authored by members of the Indiana General Assembly themselves, enacted over the course of several decades.  The General Assembly is certainly capable of enacting its own original legislation.  Like the material that I eventually discovered was drawn from the Example State Disaster Act, however, Chapter 3 contains sections (and parts of sections) that just don't seem to belong -- they do not fit the scheme or system of the rest of the chapter, or they cover the same subject as a different section in such a way that the other section would be redundant or useless, or they simply affect to grant the Governor such open-ended power that I find it impossible to believe that the Indiana General Assembly would have enacted it in peacetime and without its collective judgment having first been leveled by extreme fear.  What was the cause of this?

We deserve to know.  In particular, parts of IC 10-14-3-11 are alarmingly open-ended in what they say that they authorize the Governor to do.  IC 10-14-3-11(b): "In performing the governor's duties under this chapter, the governor may do the following: ... (2) Cooperate with the President of the United States and the heads of the armed forces ... in matters pertaining to emergency management and disaster preparedness, response, and recovery of the state and nation.  In cooperating under this subdivision, the governor may take any measures that the governor considers proper to carry into effect any request of the President of the United States and the appropriate federal officers and agencies for any emergency management action, including the direction or control of disaster preparations...."  If this power to "take any measures that the governor considers proper to carry into effect any request of the President of the United States" (relating to disaster preparedness, response, or recovery) is meant to be subject to any limits at all, neither IC 10-14-3-11 nor any other part of Chapter 3 hints at what those limits, if any, might be.  (I have a pretty good idea of the limits upon which I would insist, but that would be the answer to a very different question.)

I do not think that I have unrealistically high expectations of legislatures, but I do not believe that most legislatures, most of the time, would possess (to the degree that a legislature enacting anything like IC 10-14-3-11 would need) such enthusiasm for providing itself with a master and living under his dominion.  Hoping to learn when and under what circumstances Indiana's own legislature initially enacted this (as well as other, equally unwelcome provisions), I again went looking into the origins of Chapter 3.

I found what I was looking for.  This time, I was able to determine that the original source material for many sections of Chapter 3 is a collection of model statutes (especially the "Model State Emergency War Powers Act") recommended to state legislatures by the Roosevelt Administration in 1942, which were intended to allow the states to sufficiently adapt* to the severe demands and perils that accompanied World War II.  A comparison of the provisions of these model acts with the provisions of numerous sections of Chapter 3 makes it appear that somebody has decided that the extreme measures imposed as a part of "the war effort" (which, during the war, were judged necessary not as a general rule but only when considering the magnitude of the challenge those measures were meant to meet -- and that necessity was assessed from the viewpoint of a country that had not yet won the war, which still had the ability to lose the war, which remained exposed to all the dangers posed by the war) are both necessary and appropriate for Indiana to make perpetually available to every successive person serving as Governor, to activate at his or her discretion, allowing the Governor to wield those old war powers against sporadic weather disasters and, if necessary, react at a moment's notice to a virus that may or may not (as the case may be) have been anticipated for months before making its first contact with the state.  (Admittedly, it is possible for the state to face other, greater threats, but there probably will not be a threat that would, within so short a span of time that the General Assembly could not even be convened quickly enough to act, manage to be the equal of World War II.)

At least in their current forms, the parts of Chapter 3 that correspond with the "Model State Emergency War Powers Act" (as seen below) have been modified more heavily than the parts that were drawn from the Example State Disaster Act.  (This should be no surprise, given that World War II is not presently taking place.)  The versions found in Chapter 3 have been altered to contain far less that has special applicability to war and to say a bit more about the weather, terrorism, and something called an "Animal disease event", and also to remove references to air raid wardens, &c.  Still, compare IC 10-14-3-11 with Section 3 of the Model State Emergency War Powers Act, you should be able to see that IC 10-14-3-11 and other parts of Chapter 3 have turned these extraordinary "war powers" into an ordinary tool of government (but left to the discretion of the executive) for use in emergencies of every type, scale, and duration.

I hope to find out for certain when and in what initial form Indiana enacted these model statutes.  At the moment, I can only confirm that they were enacted in 1951 (as indicated by the information that appeared under them on the state website before Indiana's "Emergency and Disaster Management Law" was recodified in 2003).  I do not yet know whether what the General Assembly enacted in 1951 replaced a version that it may have enacted during the war, which would make sense, and I do not know how any of the corresponding parts initially read.

Regardless of how they read when they were first enacted in Indiana, it is both amazing and objectionable that the versions that remain in the Indiana Code to this day retain provisions that provide for, in substance, what were supposed to be extraordinary war powers, but which now (in substance) continue to linger almost exactly seventy-five years after the war was won.

* I am not saying that I approve of all of these adaptations.  As it happens, I do not.  I am only saying that they were intended to meet the severe demands and perils of World War II.

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