While expecting to be called back to Raleigh for votes on vetoed bills, legislators probably weren’t expecting Governor Cooper would veto eight bills. Five of the bills seek to modify various executive orders having to do with the pandemic. Two of the bills involve issues in the bailiwick of the Department of Health & Human Services, and one bill is a gun bill which, among other things, allows persons with concealed carry handgun permits to carry a handgun on educational property that serves as a location of both a school and a church.
To override a veto, each chamber must vote to override by a supermajority of three-fifths of those present and voting. In the House, if everyone is present and voting, 72 votes would be required. In the Senate, the number is 30. Only two of the eight vetoed bills passed with over 72 votes in the House and over 30 votes in the Senate: House Bill 806 [Open Exercise & Fitness Facilities] and HB652 [2nd Amendment Protection Act]. While it is possible there will be votes on one or more of the vetoed bills that didn’t achieve supermajority support, the two bills that did pass with the requisite majorities are expected to be taken up for veto override votes. Since both are House bills, the override votes will first be taken in the House.
Beginning in late March, Governor Cooper issued a series of executive orders seeking to contain the coronavirus pandemic. Schools were ordered to close, as were most businesses. Large gatherings of people were prohibited, which initially closed most churches. Most recently, the Governor ordered people to wear face masks in public. From the beginning, some opposed the orders arguing they were unconstitutional. With the passage of time and in particular the subsequent modification of orders allowing for the re-opening of some businesses while others are required to remain closed, some argued that the orders unfairly allowed some types of activities to resume while not allowing others and advocated for the legislature to overturn or modify the orders or in some way restrict the Governor’s powers.
Ours is a government of checks and balances, and most constituents who communicated with me wanted me to persuade the Governor to modify or end his orders. Some wondered why the legislature hadn’t moved to check the Governor’s overbroad executive orders. Alternatively, even before the mandate to wear face masks in public, some argued the legislature should support or institute a mask requirement.
Understandably, support for bills in any way restricting the Governor’s powers broke along party lines with Republicans almost always supporting bills overturning or modifying the Governor’s orders and with Democrats mostly opposing any effort to overturn or modify the Governor’s orders. In vetoing each of the bills modifying his executive orders, Governor Cooper had the same message: “Tying the hands of public health officials in times of pandemic is dangerous, especially when case counts and hospitalizations are rising. State and local officials must be able to take swift action during the COVID-19 emergency to prevent a surge of patients from overwhelming hospitals and endangering the lives of North Carolinians. The bill could restrict leaders who need to respond quickly to outbreaks and protect public health and safety. Therefore I veto the bill.”
While there are few that would argue the Governor should have no power to address a pandemic, the majority has consistently voted to modify or limit the Governor’s orders. Most disconcerting for me is the large number of law enforcement officials — sheriffs, district attorneys, and police chiefs — who have made clear they aren’t going to enforce the Governor’s orders. For me, that sounds like the start of a path leading to anarchy. Rather than not enforcing laws or executive orders, it would seem the better path would be to pass laws that modify any orders that are overbroad rather than allowing or condoning civil disobedience. However, the legislature doesn’t appear to have a supermajority on bills to modify any of the Governor’s orders, except perhaps with one exception.
My work with the Governor has resulted in different outcomes. Early on for example, I pushed the Governor to structure his orders in a way that allowed summer camps to open if they could social distance and make sure the virus was not among their camp populations. That effort was disappointing; most summer camps were forced to make a decision to close given the delayed guidance from the Governor’s Office as to what they needed to do to open. Of the traditional camps in the area, only Keystone Camp (girls camp in Brevard), Camp Pinnacle (boys camp in Flat Rock) and Camp Merrie-Mac and Camp Timberlake (related girls and boys camps in Buncombe County) are opening, albeit on a different schedule. Some camps are trying to open late in the summer, assuming we get past the phase three restrictions.
Next, I pushed the Governor to not issue an order that precluded the opening of breweries, wineries and cideries. After much work, the Governor’s executive order allowed for the opening of these establishments, although they had to modify operations to limit large gatherings and increase social distance. I appreciated the Governor’s decision and the work done on this issue by the Governor’s staff.
Finally, I pushed to allow some other establishments to open if they could limit large gatherings and social distance in the same manner as breweries, wineries, and cideries. The Governor was unwilling to allow any bowling alleys to open. He also closed all gyms. While allowing breweries, wineries and cideries to open, he apparently didn’t think bars could change how they operated and simply closed them all. When faced with no willingness to modify orders which closed whole segments of the economy, I’ve generally supported efforts to modify his orders. However, I was the only Republican to vote against one of the reopening bills, HB686 [Freedom to Celebrate the Fourth of July]. My view was the bill was over broad in allowing all parades without including requirements for social distancing or similar restrictions designed to limit transmission of the coronavirus.
HB806 is the only bill relating to the pandemic that appears to have some chance of becoming law. It would authorize indoor or outdoor exercise and fitness facilities, gyms, health clubs, and fitness centers to resume operations under certain conditions. Unlike the Governor’s order which closes certain classes of establishments outright, the bill allows these establishments to open if they meet certain conditions intended to thwart the spread of the virus. The idea is to allow the establishment to open if they can implement certain safeguards, rather than close them simply because they are a certain type of facility.
Initially, the Governor closed hair salons and barbershops. As it became clear that this restriction was going to be disobeyed or not enforced, he modified his order to allow the opening of hair salons and barbershops, if certain conditions were met. My view is the same approach should have been taken with respect to gyms and similar establishments.
My support of HB806 came in light of what was happening in my district. There is a fitness facility in Henderson County that is open despite the Governor’s order. The owners of the facility aren’t trying to flaunt their disobedience of the executive order; they are simply trying to stay in business. They are limiting the number of patrons and continuously disinfecting equipment between uses. They are doing as much, or even more, than other businesses allowed to open during the pandemic and my view is that there is no reason why they should be kept from opening IF they follow appropriate protocols.
What scares me is the specter of anarchy. Between the reaction to the killing of several black men by law enforcement officers, including most recently George Floyd, and the lawlessness around coronavirus restrictions imposed in most states, I feel like I’m living through something I never expected to see in the United States. The rule of law seems to be in question for a country built upon its laws and its checks and balances. Increasingly, both sides of the political spectrum seem willing to overreach, justifying their actions by an “ends justifies the means” approach.
The Governor says to wear a mask yet he is pictured marching in a Black Lives Matter demonstration without a mask. The President says all sorts of inconsistent things, but his actions speak louder than words with his mass political rallies across the country.
Regardless of how one feels about the specifics of any of the bills modifying or revoking the Governor’s executive orders, one should concede these bills are only an effort of the legislature to provide a check on what is viewed by some as unfettered executive power. My expectation as to the override of HB806 is that the seventeen Democrats in the House will fall into line and support the Governor’s veto. Thus, my bet is the legislature will not be able to override that veto.
The override vote on HB652 could go the same way. The bill would allow a person who holds a concealed handgun permit to possess and carry a handgun on education property that serves as a religious place of worship. Additionally, it has provisions related to lapsed concealed handgun permits, concealed carry for certain law enforcement facility employees, and certain emergency medical service personnel. The Governor’s veto message was simple: “This bill allows guns on school property which threatens the safety of students and teachers. Therefore, I veto the bill.”
My guess is this veto surprised some number of my Democratic colleagues since twelve House Democrats supported the bill. My view consistently has been that no constitutional rights are absolute, and this bill involves both the freedom to worship and the right to bear arms. I see no reason why the government should prohibit carrying a handgun on property that may be used both as a school and a church. Having been surprised by this veto, I wouldn’t be surprised if politics causes most, if not all, of the Democratic Members to change their votes to support the Governor.
At this point, House Members have been told to expect votes on Tuesday, Wednesday and possibly Thursday, but aside from the override votes it isn’t clear what else might come up. One that might is Senate Bill 168 [DHHS & Other Revisions]. SB168 was a bill sought by the Department of Health and Human Services, part of Governor Cooper’s administration. Following public outcry and two days of protests about a measure that would shield death investigations from public access, the Governor said he has concerns regarding the bill. However, at this point, he hasn’t vetoed the bill and the Department hasn’t requested that the legislature correct the legislation. It would be a simple matter to run a technical corrections bill to fix the language in keeping with the Administration’s current views, and I am expecting some sort of catch-all corrections bill.
Another way to fix it would be to run a separate bill, and the House Rules Committee has noticed a meeting for today to take up SB232 [Tracking Outcomes of Veterans Programs], but has indicated a proposed committee substitute for that bill entitled “Repeal Death Investigation Confidentiality.” This bill is clearly another way of repealing the provision from the earlier bill that sits on the Governor’s desk.
My primary focus this week is still HB671 [Behavior Analyst Licensure], which would provide licensure to those persons who serve autistic children and provide direct payment by insurers. Much of the past week has been spent talking to senators about the bill in hopes of this being one of the last bills that becomes law before we take a break to await additional revenue numbers and/or further direction from Congress as to how the state can spend the federal funds provided by the CARES Act.