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We have a legal showdown underway in Oregon that has implications across this battered republic.
On Monday, a judge in Baker County, Oregon, acting on a case brought by faith groups, invalidated the restrictions on businesses and social gatherings imposed under Governor Kate Brown’s emergency actions in response to the COVID-19 pandemic, dating back to March.
Judge Matt Shirtcliff, a Brown appointee, found that Brown had exceeded her statutory authority. He also declined to grant a stay, which, momentarily, threw Oregon’s COVID-19 restrictions and phased “reopening” plan into confusion.
The Governor and Attorney General appealed the matter to the Supreme Court, which imposed a stay on Monday night, pending an appeal which will probably be heard next week. That means the restrictions stay in place.
There has, predictably, been a hue and cry over the legal wrangling, a lot of which misses the critical point: It’s not about COVID-19.
The critical matter before the courts in Oregon is not so much about the COVID-19 restrictions imposed under Governor Kate Brown’s orders as it is about the authority under which they were enacted.
This is not nit-picking — in a republic, HOW you do things matters as much as WHAT you do, because the rule of law is all that stands between citizens and arbitrary rule. Making comparisons to seatbelt laws, helmet laws and no-smoking regulations is missing the point: Such laws were enacted legislatively or by referendum, and, if challenged in court, passed constitutional muster. They were not enacted by fiat.
There is no question that the governor has extraordinary emergency powers — but they are not unlimited in scope or time. The case out of Baker County that is now before Oregon Supreme Court will determine whether Governor Brown acted within the limits of her statutory power. She believes she did; Judge Shirtcliff has ruled that she did not.
Setting and enforcing statutory limits on executive authority is of critical importance, regardless of whether or not one approves of the immediate practical outcome. It’s not a political question. You either believe in the rule of law or you don’t.
It would behoove Oregonians as citizens to read the relevant statutes, Judge Shirtcliff’s ruling and the arguments before the court, rather than simply reacting to headlines on social media. Yeah, I know… still.
Folks in other states will likely see similar legal showdowns. Be smart, pay attention, watch yer topknot and keep yer powder dry.
Making comparisons to seatbelt laws, helmet laws and no-smoking regulations is missing the point: Such laws were enacted legislatively or by referendum, and, if challenged in court, passed constitutional muster. They were not enacted by fiat.
I think a difference here is *time*. Those other issues don’t come barreling at you like a pandemic, (or earthquake, or whatever.) We know how slow a legislative body can be to act (though, sometimes, they can be speedy.)
Personally, in a situation like this, I’d allow executive power but see that it must be checked/ratified by the legislative body within 7–14 days or it’s nullified. That way, you can have the needed quick response without permanent power-holding.
But, to your point, that’s not what is on the books now so OR needs to act accordingly.
Oregon does allow for executive action, under a variety of statutes, some of which act just as you describe. The Circuit Court judge’s ruling was that the governor exceeded statutory limitations regarding time.
From OPB:
When she declared an emergency on March 8, Brown opted to use a provision in the statute that grants her broad authority in emergencies and does not expire until the governor or legislative assembly declares the emergency has passed.
But Shirtcliff found that aspects of Brown’s emergency orders more closely resembled the provisions of another section of state law governing public health emergencies — a section that Brown has referenced in her orders.
Those provisions grant the governor more specific powers to prevent citizens from moving around the state or gathering. But they also come with strict time limitations: They expire after 14 days unless the governor extends them by another two weeks. In no case can the public health provisions under this area of the law extend beyond 28 days, Shirtcliff ruled.
Brown also could have declared an emergency via a section of the state constitution that would have expired after 30 days, unless extended by a vote of the Legislature. She did not invoke that section.
The governor’s initial emergency declaration lasted for 60 days. She extended it for an additional 60 days earlier this month. That was illegal, Shirtcliff found.
“Because the Governor implemented statutory provisions, she is bound by them,” Shirtcliff wrote. “Thus, once the maximum 28-day time provisions… expired, the Governor’s Executive Order and all other orders were rendered null and void.”
Matthew says
This is not nit-picking — in a republic, HOW you do things matters as much as WHAT you do, because the rule of law is all that stands between citizens and arbitrary rule.—
I wish more people understood this.
Ugly Hombre says
What is strange to me is the goofy as hell no sense edicts the political’s put out. Much of it Non- Constitutional, and pro criminal. Beyond me keen.
Empty the jails of criminals, violent felons, sex offenders, armed robbers.
Make sure the state sponsored Dope Den’s are open, get that stuff out there at max. capacity, keep um’ numb.
Wear masks then don’t, wear masks then don’t, wear masks then don’t. etc et al.
Make sure you give money to illegal alien criminals pass a bill for it- 125 million to start. We’ll give you more later. We need the votes *
Close all the gun stores, the better to keep the serfs in line. Anyway- 2nd amendment people are the foes of the state illegal aliens not so much,.
Anyone that goes to the beach goes to jail, that gives us a chance to let another violent convict out of the iron bar hotel.
* Talking about California- the criminal state, a place with Superman bizarro world rules.
Roger says
In my (NV) humble opinion, the large error was in the judiciary placing a hold on the REMOVAL of the govt. fiat.
I believe that all of these questions should always defer to personal freedom, not govt. power.