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A Pandemic Does Not Suspend the Rule of Law

Courts are beginning to recognize that public health powers, while broad, are not a blank check.

The recent court decisions overturning COVID-19 lockdowns in Wisconsin and Oregon focused on abstruse issues of statutory interpretation. But both cases also addressed a more fundamental question:

Is the rule of law suspended during a public health crisis?
In response to the COVID-19 pandemic, state officials have imposed unprecedented restrictions on our liberties and livelihoods, acting on the assumption that they can do whatever they think is necessary to protect the public from a potentially deadly disease. The courts, which were initially reluctant to second-guess state responses to COVID-19, are beginning to recognize that public health powers, while broad, are not a blank check.

Wisconsin

The Wisconsin case involved a dispute between two branches of the state government. The Republican leaders of the state legislature argued that Andrea Palm, a Democrat who runs the Wisconsin Department of Health Services, was exercising powers she had never been granted when she ordered the closure of “nonessential” businesses and confined residents to their homes except for purposes she approved, threatening violators with fines and jail.

This case was not simply a partisan spat. It raised the question of whether a single executive branch official can unilaterally criminalize heretofore legal behavior, based on nothing more than her own judgment of what is required to protect public health.

The Wisconsin Supreme Court last week concluded that Palm’s order qualified as a “rule” under state law, meaning she could not legally impose it without following emergency rulemaking procedures she admittedly ignored. Those procedures, Chief Justice Patience Roggensack said in the majority opinion, provide “the ascertainable standards that hinder arbitrary or oppressive conduct by an agency,” ensuring that the “controlling, subjective judgment asserted by one unelected official…is not imposed in Wisconsin.”

Palm argued that her order was authorized by a statute that says her department “may authorize and implement all emergency measures necessary to control communicable diseases.” But as Justice Daniel Kelly noted in a concurring opinion, that broad interpretation erases the distinction between the legislative and executive branches.

“Under our constitutional form of government, the Legislature cannot possibly have given the Secretary the authority she believes she has,” Kelly wrote. “If we agreed with the Secretary’s reading of [the law], we would have to conclude the statute violated the separation of powers by conferring on the Secretary the power to make laws without going through the rule-making process.”

Oregon

In the Oregon case, Baker County Circuit Judge Matthew Shirtcliff concluded that Gov. Kate Brown had violated the statute she cited as the authority for her business closure and state-at-home orders. Under that law, Shirtcliff said in a ruling on Monday, such orders can last no longer than 28 days.

Whether or not you agree with these decisions or the policies they overrode, the principle at stake is vitally important. Even in an emergency—especially in an emergency—government officials are bound by the law.

“If we tolerate unconstitutional government orders during an emergency, whether out of expediency or fear, we abandon the Constitution at the moment we need it most,” Texas Supreme Court Justice James Blacklock observed earlier this month. “Any government that has made the grave decision to suspend the liberties of a free people during a health emergency should welcome the opportunity to demonstrate—both to its citizens and to the courts—that its chosen measures are absolutely necessary to combat a threat of overwhelming severity. The government should also be expected to demonstrate that less restrictive measures cannot adequately address the threat.”

Whether COVID-19 control measures can pass that test, Blacklock suggested, depends on emerging knowledge about the epidemic. “As more becomes known about the threat and about the less restrictive, more targeted ways to respond to it,” he said, “continued burdens on constitutional liberties may not survive judicial scrutiny.”

South Carolina

These decisions provide guidance to South Carolina as many communities are beginning to implement Masking Requirements.  Under “separation of powers” this is for the legislative body, not an individual in the executive branch.  This virus can no longer be determined an emergency with out time for the lawmaking process to take place.  The South Carolina Attorney General Alan Wilson weighed in if a city can lawfully pass those kinds of ordinances and he said that the short answer is yes.“Our state constitution and state laws have given cities the authority to pass these type of ordinances under the doctrine of Home Rule. The basic premise behind the Home Rule doctrine is to empower local governments to effectively govern themselves without interference from state government.  But there are some limits to the power.”  ” Wilson said in a statement.

Wilson explained that one limit would be if the state General Assembly would prohibit a city from passing the ordinance through some state law.  As such, the question that these local communities must ask is that of preemption.

The preemption doctrine refers to the idea that a higher authority of law will displace the law of a lower authority of law when the two authorities come into conflict.  So when a city or county creates a law it can not conflict with State or Federal Law.  Much like a state law can not conflict with a federal law.  As such I give you state law 16-7-110:

2015 South Carolina Code of Laws
Section 16-7-110. Wearing masks and the like.

No person over sixteen years of age shall appear or enter upon any lane, walk, alley, street, road, public way or highway of this State or upon the public property of the State or of any municipality or county in this State while wearing a mask or other device which conceals his identity. Nor shall any such person demand entrance or admission to or enter upon the premises or into the enclosure or house of any other person while wearing a mask or device which conceals his identity. Nor shall any such person, while wearing a mask or device which conceals his identity, participate in any meeting or demonstration upon the private property of another unless he shall have first obtained the written permission of the owner and the occupant of such property.

HISTORY: 1962 Code Section 16-114; 1952 Code Section 16-114; 1951 (47) 132.

I have no doubt that county and state officials believe they are doing their jobs, hopefully the legislature and judges will step in and do theirs also if the Rule of Law is over looked .  Meanwhile, if you need an attorney and a law firm that WILL do their job and serve you, call us at Goldfinch Winslow:  843-357-9301

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