If you find yourself scratching your head at recent Washington COVID-19 headlines, don’t worry, you are not alone.
Last week, the Attorney General of Washington sued two gym owners for remaining open, threatening severe penalties. That was the day after four more Washington casinos reopened. You still can’t get a haircut here, but you can buy pot. Crowded parking lots at Home Depot are a common occurrence, but if you participate in a religious service in a church parking lot, you cannot open your windows or get out of the car. A cashier at McDonald’s drive thru can hand you a burger, but a priest may not hand you a bag of communion bread and grape juice. You can shop for a new shirt inside Target, but small local clothing shops cannot let you in without violating the law.
Some people are confused; some are getting angry.
Looking south to Oregon, a judge last week found coronavirus restrictions “null and void” only to be halted by the Oregon Supreme Court hours later. A different result occurred in Wisconsin where their state Supreme Court struck down its stay-at-home order.
In North Carolina, a federal judge ruled the governor’s coronavirus restrictions violate religious expression. In Minnesota, the governor’s May 13 order allowed the giant Mall of America to re-open, but restricted religious gatherings to 10 or fewer.
This past weekend President Trump reentered the fray, demanding that governors allow places of faith to open right now. The next day, Minnesota’s governor changed course. U.S. Attorney General Barr says, “There is no ‘pandemic exception’ to the U.S. Constitution.”
What is going on?
Fundamentally, governors are pushing the limits of their “emergency powers.”
For the last two months, governors have wielded king-like authority, controlling our day-to-day lives in ways previously unimaginable, at times, in seeming violation of the U.S. Constitution.
They have forbid us from peaceably assembling (what about the First Amendment?), we can’t gather for religious services (First Amendment?), we can’t freely travel (Privileges and Immunities Clause, Fifth Amendment?), we can’t operate our businesses (Fifth and 14th Amendments?).
Can governors really infringe upon our civil liberties in times of trouble? What is the source of these emergency powers? And what are the limits?
First, the source: You may remember from high school civics that ours is a system of limited federal government. The federal government does not have a police power; state governments do. It’s the police power that allows states the ability to regulate in the interest of the health and safety of citizens — which of course, is what governors are doing with their proclamations, orders and directives keeping us home, closing businesses, and schools to slow the spread of COVID-19.
Specifically, here in Washington, Gov. Inslee is purporting to act under RCW 38.08, Powers and Duties of Governor, 38.52, Emergency Management, and 43.06, State of Emergency Powers (but maybe it should be RCW 70.26, Pandemic Influenza Preparedness, time will tell.)
There are several lawsuits pending against the governor, including suits by public school parents, state legislators, and small business owners. And last Friday, two more suits were filed by local folks right here in town.
The governor’s emergency powers are vast, but not without limits.
The most obvious limit is that emergency powers last only for the duration of the “emergency.”
Who decides when the “emergency” ends? Here in Washington, the governor. Are Chelan and Douglas counties in a state of emergency right now? Gov. Inslee says yes.
What criteria is he using to make that decision? Well, that’s a moving target: Most recently it was having an average of less than 10 new coronavirus cases per 100,000 in a county over 2 weeks’ time, but the governor’s spokeswoman recently said additional criteria could be announced this week.
Here is another limit: the Constitution forbids arbitrary government action. Government action — even governor “directives” issued using those broad emergency powers — must, at a bare minimum, be rationally related to a legitimate public interest.
Government action that affects First Amendment rights must meet an even higher standard, which makes sense given the importance of such rights.
Remember back in March? The “legitimate public interest” given for the shut-down was “flatten the curve!” Preventing the health care system from becoming overwhelmed was a legitimate public interest at the time, given what medical professionals were projecting about COVID-19 mortality and transmission rates.
But that was months ago. We have learned more about COVID-19 since then. Just last week the Centers for Disease Control and Prevention lowered its estimates for future coronavirus infections and deaths. Testing shows that many have had COVID-19 and produced antibodies while never experiencing symptoms. Our health care system here in Wenatchee is not overwhelmed. Our state just sent 400 more ventilators back East because we do not have the shortage we anticipated.
The rationale that initially justified shutting down our whole state is now, with more information and changed circumstances, called into question.
Yes to Target, no to local clothing shop; yes to Home Depot, no to church; yes to marijuana, no to gyms: things are starting to look arbitrary.
If governors’ directives restrict some, but not others, using changing criteria we can no longer understand, and under circumstances that no longer look like the original “emergency,” the constitutionality of those directives is called into question.
At this point, governors’ use of emergency powers is undermining the checks and balances in our federal and state government. It’s time to call our state legislature into special session. We need more local, representative voices at the table to lead us through the coming phases of COVID-19.
Mari Foreman Groff is a graduate of Wenatchee High School, Harvard College, and Boston College Law School. She is an attorney with Foreman, Hotchkiss, Bauscher & Zimmerman, PLLC in Wenatchee.