We finally know why the part of the Indiana Code allowing the Governor of Indiana to declare a "State of Disaster Emergency" (which Governor Holcomb did declare in March in relation to the pandemic and has renewed several times since then) gives the only check on that power to the General Assembly, even though the General Assembly is only in session for a couple of months near the beginning of each year, making the check useless for most of the year: that part of the Indiana Code was neither written for Indiana nor by people familiar with Indiana.
(It was, of course, enacted by the Indiana General Assembly, or else the provisions of this "Example State Disaster Act" would not now be a part of the Indiana Code. When the General Assembly did enact it, which I have learned that it did in 1976, it obviously wasn't paying attention.)
Like many "model" or "example" acts, the "Example State Disaster Act" was published with its own official commentary by its authors themselves. The Example State Disaster Act's official commentary (which appears alongside the act itself in my previous post) seems to imply what I suspected: the person or persons who wrote the language to give the state legislature the power to end a "state of disaster emergency" by voting to do so expected the legislature of the state to actually be in session during the emergency. The proposed check was intended and designed to be usable. The commentary states, "Such provisions are included because the powers to be exercised during a disaster emergency are extraordinary ones and so should be confined to the periods intended by law."
The General Assembly that adopted this (in 1976) neglected to properly adapt it for use in Indiana, but it is nevertheless true that the people who actually planned and composed what the legislature adopted designed it with the expectation that a usable check would actually be in place. Without that check -- and that is the position in which Indiana is currently situated -- the provisions of this act are unbalanced and dangerous.
This reasoning does not and cannot compel Governor Holcomb to call a special session of the Indiana General Assembly -- nothing can -- and the arguments that I have previously made for him to call a special session were not intended to bring the General Assembly into a position where it could put an end to this "state of disaster emergency". (I doubt that the General Assembly would even do that -- at least for now.) It is nevertheless a compelling additional reason why he should, exercising his own judgment, choose to call the special session that Indiana needs and deserves.
It is unnecessary for the General Assembly to actually exercise this particular power in order for its presence to be beneficial and proper. If the current circumstances are extraordinary, and if they require the state government to take extraordinary action or exercise extraordinary powers, these are reasons why it should be done in the presence and with the supervision of the representatives of the people of Indiana, not why it should be done without them (out of fear that they will interfere). Even to the extent that the conduct of the state government over the past two months has been properly executive or administrative in character, our elected representatives ought to be active and assembled, prepared to hear the grievances of the people of our state and possessing the ability to act to redress them. The Executive and Administrative Departments of government, however diligent they might be, could never provide a satisfactory substitute for this.
Additionally, much of the recent conduct of our state government has not been executive or administrative at all; it has been legislative, and as overtly legislative as it could have been without actually applying that term to itself. If the need for legislation is so urgent and undeniable as to drive our state's Executive Department to such desperation, there could never be a better or a more irresistible argument for a special session of the General Assembly -- this, and this alone, is the purpose of a special session, and this, and this alone, is why the Indiana Constitution gives the Governor the power to call special sessions.
The fact that the very emergency powers that the Governor has invoked were designed with the understanding that the General Assembly would be in session while they are in use only further exhausts what might have remained of any plausible pretense of justification for leaving our representatives inert and useless at a time when the state government insists on the necessity of it claiming and exercising such total and alien powers over the people of Indiana.
(It was, of course, enacted by the Indiana General Assembly, or else the provisions of this "Example State Disaster Act" would not now be a part of the Indiana Code. When the General Assembly did enact it, which I have learned that it did in 1976, it obviously wasn't paying attention.)
Like many "model" or "example" acts, the "Example State Disaster Act" was published with its own official commentary by its authors themselves. The Example State Disaster Act's official commentary (which appears alongside the act itself in my previous post) seems to imply what I suspected: the person or persons who wrote the language to give the state legislature the power to end a "state of disaster emergency" by voting to do so expected the legislature of the state to actually be in session during the emergency. The proposed check was intended and designed to be usable. The commentary states, "Such provisions are included because the powers to be exercised during a disaster emergency are extraordinary ones and so should be confined to the periods intended by law."
The General Assembly that adopted this (in 1976) neglected to properly adapt it for use in Indiana, but it is nevertheless true that the people who actually planned and composed what the legislature adopted designed it with the expectation that a usable check would actually be in place. Without that check -- and that is the position in which Indiana is currently situated -- the provisions of this act are unbalanced and dangerous.
This reasoning does not and cannot compel Governor Holcomb to call a special session of the Indiana General Assembly -- nothing can -- and the arguments that I have previously made for him to call a special session were not intended to bring the General Assembly into a position where it could put an end to this "state of disaster emergency". (I doubt that the General Assembly would even do that -- at least for now.) It is nevertheless a compelling additional reason why he should, exercising his own judgment, choose to call the special session that Indiana needs and deserves.
It is unnecessary for the General Assembly to actually exercise this particular power in order for its presence to be beneficial and proper. If the current circumstances are extraordinary, and if they require the state government to take extraordinary action or exercise extraordinary powers, these are reasons why it should be done in the presence and with the supervision of the representatives of the people of Indiana, not why it should be done without them (out of fear that they will interfere). Even to the extent that the conduct of the state government over the past two months has been properly executive or administrative in character, our elected representatives ought to be active and assembled, prepared to hear the grievances of the people of our state and possessing the ability to act to redress them. The Executive and Administrative Departments of government, however diligent they might be, could never provide a satisfactory substitute for this.
Additionally, much of the recent conduct of our state government has not been executive or administrative at all; it has been legislative, and as overtly legislative as it could have been without actually applying that term to itself. If the need for legislation is so urgent and undeniable as to drive our state's Executive Department to such desperation, there could never be a better or a more irresistible argument for a special session of the General Assembly -- this, and this alone, is the purpose of a special session, and this, and this alone, is why the Indiana Constitution gives the Governor the power to call special sessions.
The fact that the very emergency powers that the Governor has invoked were designed with the understanding that the General Assembly would be in session while they are in use only further exhausts what might have remained of any plausible pretense of justification for leaving our representatives inert and useless at a time when the state government insists on the necessity of it claiming and exercising such total and alien powers over the people of Indiana.
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