What Happens on September 9, 2020 When the Executive Orders All Expire?

The Governor’s authority to issue Executive Orders comes from Connecticut General Statutes Section 28-9(b)(1), which provides as follows:

Following the Governor's proclamation of a civil preparedness emergency pursuant to subsection (a) of this section or declaration of a public health emergency pursuant to section 19a-131a, the Governor may modify or suspend in whole or in part, by order as hereinafter provided, any statute, regulation or requirement or part thereof whenever the Governor finds such statute, regulation or requirement, or part thereof, is in conflict with the efficient and expeditious execution of civil preparedness functions or the protection of the public health.

As of today, the Governor has issued forty-seven Executive Orders, the last one being Executive Order 7TT.  Like all the preceding forty-six Executive Orders “to suspend or modify statutes and take other actions necessary to protect the public health and safety and to mitigate the effect of the COVID-19 pandemic”, the opening WHEREAS clause of 7TT cites the date when the Governor “issued a declaration of public health and civil preparedness emergencies.”  That date is March 10, 2020.  The reason that date is important is because that is when the clock started to run.

Connecticut General Statues Section 28-9(b)(1) not only authorizes the Governor to issue Executive Orders, it also includes a sunset clause:

The Governor shall specify in such order the reason or reasons therefor and any statute, regulation or requirement or part thereof to be modified or suspended and the period, not exceeding six months unless sooner revoked, during which such order shall be enforced.  Any such order shall have the full force and effect of law upon the filing of the full text of such order in the office of the Secretary of the State. (C.G.S. sec. 28-9(b)(1), emphasis added)

Unless any of the Executive Orders are “sooner revoked”, the state of emergency and the Orders expire on September 9, 2020. Here is the link to the Governor’s March 10, 2020 letter to Secretary of State Denise Merrill, and the clerks of the General Assembly, in which Governor Lamont declares “a public health emergency  and civil preparedness emergency throughout the State, pursuant to Sections 19a-131a and 28-9 of the Connecticut General Statutes” and that such emergencies “shall remain in effect through September 9th, 2020, unless terminated earlier by me.” https://portal.ct.gov/-/media/Office-of-the-Governor/News/20200310-declaration-of-civil-preparedness-and-public-health-emergency.pdf?la=en  What happens then? 

Given our State Constitution, and the separation of power among three branches of government, two possible outcomes emerge: (1) the legislature takes action to amend C.G.S. 28-9, or enacts separate legislation, that adopts  the Executive Order  changes, or otherwise allows some or all of them to run beyond the six-month time limit contained in paragraph (b)(1); or, (2) the Governor declares a second civil preparedness and/or public health emergency.  It is unclear what circumstances would support declaration of a second emergency. Resurgence of the pandemic through a second wave, or a complication caused by a virus mutation could possibly justify a second declaration. Should a second emergency declaration be issued, it can be disapproved (just like the March 10th declaration) by a majority vote of a joint legislative committee, as set forth in subparagraph (a) of C.G.S. sec. 28-9. Thus, the Legislature could enact legislation that validates some or all the Executive Orders issued in response to the March 10, 2020 declaration or allow the issuance of more Executive Orders in the event of a second declaration. But if neither of those eventualities occurs, then on September 9, 2020, the state of emergency and all the Executive Orders enforceable during that emergency, expire.  Once the Orders expire, all the statutes and regulations they modified or suspended would return to their unmodified and unsuspended status.

Many of the Executive Orders delegated authority to administrative agencies and commissioners, including the Commissioner of Education. The Executive Orders that delegated authority to the Commissioner of Education, absent legislative intervention, will likewise expire on September 9, 2020. As Connecticut educators work feverishly to put into place a comprehensive plan for instruction and services by the start of the 2020-2021 school year, please bear in mind the impermanence of the Executive Orders. 

For any questions, please contact any of our School Law attorneys at Pullman & Comley.

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