Lawmakers weigh in on Justice’s legal authority

CHARLESTON — While some lawmakers see Gov. Jim Justice’s use of executive powers as evenhanded during the pandemic emergency, others would like to see more legislative involvement, particularly when it comes to the $1.25 billion in federal dollars the state has received.

Ever since the end of the 2020 legislative session on March 7, Justice has exclusively led the response to the coronavirus pandemic by issuing proclamations for states of preparedness and emergency and using executive orders and authorities given to him by state code during emergencies.

On Friday, Justice defended his leadership and decisions over the last 130 days since he issued a proclamation for a state of preparedness on March 4. More than 13 days later and more than one week after the legislative session ended, Justice on March 16 issued a proclamation for a state of emergency.

“If anyone can find a fallacy in what I’m doing, I’d welcome it,” Justice said. “All of us in the governor’s office stand with our doors completely wide open to discuss any of the details on anything we’re doing. We want to be completely transparent. On the other hand, these powers under the emergency situation are powers that I am supposed to be directing and doing.”


Sen. Charles Trump, R-Morgan, is chairman of the Senate Judiciary Committee. Based on his understanding of the state code, he believes Justice has followed the law and has tried hard not to abuse his executive authority powers.

“I personally give the governor pretty high marks for what he has done over the course of the last four months now,” Trump said in a phone interview Thursday.

“This pandemic that we’ve been dealing with is different from other disasters and emergencies that the executive branch or the Legislature has had to deal with previously,” Trump said. “You’re working within a framework of emergency powers that are general broad strokes authority of the executive, but I don’t think (Justice) has overstepped from what I’ve seen.”

A state of preparedness gives the governor the same power as a state of emergency, but states of preparedness expire after 30 days. States of emergency last until either the governor issues an executive order rescinding the state of emergency or the Legislature passes a concurrent resolution terminating the state of emergency. So far, the state of emergency for the pandemic has been in place for 117 days with no end in sight.

In the state code, a state of emergency gives a governor the power to assume direct authority of emergency services in the state; to procure and seize materials, property or facilities for the emergency; to obtain services and set compensation; to evacuate parts of the state as needed; to control travel to and from regions of the state; and to suspend state laws.

One of the vaguer parts of the code allows the governor “to perform and exercise other functions, powers and duties that are necessary to promote and secure the safety and protection of the civilian population.”

As of July 10, there have been 49 executive orders given by Justice during the pandemic. The first executive orders were released March 18 a day after the state reported its first case of COVID-19 in Jefferson County. The first executive orders in March closed down the casinos, barber shops and nail salons, limited restaurant service to delivery or pick-up and removed requirements in the state unemployment compensation system to expedite benefits.

Later, Justice issued an executive order March 23 closing all non-essential businesses and ordered state residents to remain at home except for groceries and supplies, medical care and travel as essential employees. Since the end of April, many of those executive orders have been rescinded or amended as businesses started to re-open and residents tried to return to some semblance of normalcy.

Trump said that even though the Legislature hasn’t been called back into a special session, Justice has accepted feedback and recommendations from at least Republican legislative leadership.

Justice said Friday that he spoke with Senate Finance Chairman Craig Blair, R-Berkeley, and legislative leaders, such as Senate President Mitch Carmichael, R-Jackson, and House Speaker Roger Hanshaw, R-Clay. They could be seen leaving the governor’s mansion on Friday.

“He has accepted lots of input from members of the Legislature,” Trump said. “I know I’ve called the governor’s office literally dozens of times over the last four months about various aspects of his executive order. They haven’t adopted all my suggestions, but they have considered all of them and they’ve adopted some of them where they could.”


Since April, the state has received $1.25 billion in federal funding through the Coronavirus Aid, Relief, and Economic Security Act. C.A.R.E.S. money is meant to be used to cover reimbursements for state and local government expenses related to the pandemic between now and the end of December. Some lawmakers believe Justice is ignoring the law and the Constitution by distributing that money without legislative input.

“The governor is currently running the state as if he was a king and our system was not designed for a king,” said Delegate Shawn Fluharty, D-Ohio, a member of the House Judiciary Committee. “Our system was designed for the constitution to be followed, and the Legislature has the power of the purse.”

The state received the money in mid-April and created a website on May 15 for county and city government and other governmental agencies can apply for C.A.R.E.S. Act reimbursements. Justice has faced criticism from political opponents and U.S. Sen. Joe Manchin, D-W.Va., for moving too slow to disburse the funds, dragging its feet waiting for additional guidance from the U.S. Treasury Department to use the funds to backfill budget deficits caused by coronavirus shutdowns and decreased tax revenue.

Democratic and some Republican lawmakers have also expressed frustration at being left out of the planning on C.A.R.E.S. Act funding.

“The Legislature should have been involved in the very beginning. It hasn’t been,” Fluharty said. “He is purposely ignoring the Legislature, ignoring his Republican leadership, ignoring separation of power issues that will arise, and he’s doing so under this guise that he has the authority to do it during a crisis.”

Two weeks ago, Justice announced a proposal to spend the $1.25 billion, including setting aside $200 million for reimbursements for counties and municipalities, a $150 million small business grant program, $10 million for the newly-reopened Fairmont Regional Hospital, $50 million for highway projects near hospitals, $50 million for broadband expansion for tele-health and distance learning, and $687 million put on hold for the state unemployment compensation trust fund if needed.

The state Constitution states that “no money shall be drawn from the treasury but in pursuance of an appropriation made by law.” But the governor’s office is relying on a legal opinion from the Bailey and Glasser law firm, hired by the governor’s office without going through the normal bidding process to manage the C.A.R.E.S. Act, which believes the state code gives the governor authority to spend federal dollars allocated for emergencies without legislative approval.

“That’s the money that I am supposed to be administrating and looking after and making recommendations and doing exactly that,” Justice said. “I would challenge anybody and everybody to look at how I have set out to administer those dollars.”

“We can’t allow one individual to decide $1.25 billion,” Fluharty said. “The reason the Legislature has the power of the purse is that we represent smaller communities. We are more in tune to our constituents than the governor is to the state of West Virginia. We know what certain areas of the state need, and that’s why we have 100 House members. That’s why we have 34 Senate members. We are more in tune to what the needs of the community and not the governor.”

At the end of June, several lawmakers attempted to circulate a petition to fellow lawmakers to call themselves into a special session. It takes 20 members of the Senate and 60 members of the House to agree to a special session without a proclamation from the governor. The circulated petition did not receive the required numbers. Other lawmakers have sent Justice open letters asking to be called back into session.

Trump said he disagreed with his fellow lawmakers and believes that Justice was within his authority under state code to distribute the C.A.R.E.S. Act funding without a stamp of approval from the Legislature.

“Should the governor have to assemble the entire Legislature to be able to provide a check to the Barbour County Health Department or the Barbour County Commission to defray some portion of its expenses in dealing with COVID,” Trump said.

“I’ll use the word balance,” Trump said. “He is seeking input from the legislative branch, but we’re in a state of emergency. We don’t want to choke off the state’s response to it because the Legislature has to be assembled and micromanage every aspect of it. I don’t think that’s the appropriate legislative role.”

In the end, Justice said the calling the Legislature back into session would only slow down the distribution of C.A.R.E.S. Act funds.

“I am not opposed to the process of all the checks and balances that there could possibly be, but in this situation right here under the emergency that we’re under and under the gun that people are genuinely dying, we do not have time for a political circus to happen and happen right here and be able to try to tend to that while we’re trying to tend to the people,” Justice said. “That’s why I’m opposed to that.”


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