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.