The Speaker won’t call for an emergency session on Sen. James Moylan’s bill that would prevent the governor from lifting processes on implementing rules and regulations.

She said the legislature’s role in checking and balancing the powers of the executive branch applies to “public finances and making sure that the health and safety of our Community is prioritized.”

“This being said, when it comes to the violation (or over-reach) of the law, or an individual’s rights – we have a third and coequal branch of government, our Courts,” Speaker Tina Muna Barnes wrote.

The speaker told Moylan that after a public hearing on his bill is held, she would “commit to ensuring that this measure is brought up at the upcoming session, or to even call for an Emergency Session to address this.”

Moylan had introduced new legislation that he said would help ensure checks and balances between the branches even in the midst of a public health emergency - the declaration of which provides the governor with broad powers.

His bill would require legislative approval before the governor could, under a public health emergency, decide to bypass processes that promote government transparency and public input. He had requested the speaker to waive the public hearing requirement and hold an emergency session on his new bill.

The legislation was written in response to the governor’s most recent executive order.

"While the intent is to assist in curtailing the spread of the virus, the Executive Order opens the door to potential abuse," he stated.

The governor recently signed an executive order to lifting the Administrative Adjudication Act, a process that requires the government to inform residents of proposed changes to rules and regulations, explain why the changes are needed, and request residents to comment.

Gov. Lou Leon Guerrero’s executive order noted that removing this process will help the Department of Public Health and Social Services respond quicker to issues that rise during the course of the public health emergency. The governor cited her own authority under the state of emergency to lift the AAA process.

This isn't the first time the governor has tried to lift a restriction in the name of ensuring quick public health emergency response to the current pandemic. 

In March, the governor signed an executive order that, among other things, aimed to improve government efficiency by removing the "bureaucracy" or requirement of announcing a government meeting five days in advance.

The Vigilance Committee, an organization that promotes government transparency, challenged the governor's decision to suspend a law that holds the government and its board and commissions accountable to the public. 

Reasons of denial

Muna-Barnes said she won’t allow emergency session on Moylan’s bill, specifically citing Guam law and the Organic Act.

“While I have taken a very liberal approach with my analysis of ‘addressing the crisis at hand’ – it solely relies on one thing: even if it has to be a far stretch - will the proposed measure make the crisis better? “ she asked. “Your measure proposes to hamper Public Health’s approach to responding to a crisis – not make it better. While you argue that the Executive Order may be an overreach of the Emergency Powers Act – precedence set by the Supreme Court’s ruling on Marbury v. Madison clearly states that this would be a matter for the courts, not the Legislature. Me granting a waiver, would violate 2 GCA § 2103(a).”

The Speaker also said that Public Health acting director Art San Agustin stated Moylan’s bill would “hamper his ability … to respond to the Public Health Emergency on our hands.” She added that State Surgeon, Dr. Michael W. Cruz, MD, said Moylan’s bill “may take away from the Governor’s ability to respond to a Public Health Emergency.”

She also alluded to the amount of time required to pass legislation, even if a public hearing requirement is waived, would take time.

“Your proposed plan of action, should it be passed by this body, I imagine would take days of debate on the session floor, and upon engrossment and then passage, would allow the Chief Executive another ten days to either pass or veto the measure. Should our Governor veto your proposed measure, we would have to come back to the Legislative branch to attempt an override.”

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