Bryan Page has posted a new paper that is an unexpected example of the way the concept of an "emergency" can expand, so that the exception becomes the rule. The essay is State of Emergency: Washington's Use of Emergency Clauses and the People's Right to Referendum (the "Washington" here is the State of Washington). Page is an attorney in the Code Reviser's Office of the Washington State Legislature. Here's the abstract:
Before the referendum was adopted in Washington, legislative declarations of emergency were of little concern. The Legislature could freely legislate, and had discretion to put a law into effect immediately. However, that changed in 1912 when the people amended the constitution to provide for the initiative and referendum.
The people reserved to themselves the power of referendum over any act, bill, or law passed by the Legislature. Specific limitations on the types of laws that could be put into effect immediately and excluded from their power of popular referendum where included. Only bills that are “necessary for the immediate preservation of the public peace, health or safety, [or] support of the state government and its existing public institutions” may be exempt from referendum. The Legislature has fashioned emergency clauses parroting this constitutional language to mark bills that are excluded from referendum and take effect immediately. Over the years, the validity of theses emergency clauses have been challenged by citizens seeking to assert their right to referendum over bills they feel do not fit into the two enumerated exceptions to referendum.
Since the referendum was adopted, courts in Washington have been marred in confusion when deciding cases challenging the validity of emergency clauses. Courts have struggled to find a balance between the people's right to referendum and the Legislature's need for the ability to declare laws immediately effective. The people's general power of referendum serves as an important check on the legislative branch of government, enhances legislative accountability, and increases public participation in government. Any attempts to weaken the referendum process should be rejected, and steps should be taken to prevent the unwarranted intrusion upon the people's right to referendum.
This article discusses the history and current use of emergency clauses in Washington. It finds that the frequent use of emergency clauses at best leads to a perception of the improper use of emergency clauses, and at worst is evidence that the people's right to referendum is being frustrated. The referendum is a vital part of Washington's political system, providing a check on unrepresentative legislatures and allowing direct public participation on important policy matters. Therefore, reforms are needed to ensure the referendum process is not weakened by the Legislature's use of emergency clauses, including more stringent judicial review of such clauses, requiring facts making up the emergency to be included in bills, and requiring supermajority approval of bills containing emergency clauses.