Gov. Roy Cooper is setting the stage to have even stronger powers if he chooses to impose new COVID-19 rules, a legal scholar tells Carolina Journal.
Cooper’s administration is asking local leaders to restrict restaurants, close bars, and fine businesses for failing to enforce mask mandates and other lockdown rules. Republican leaders slammed Cooper for “passing the buck” and dodging responsibility for shutdowns. The election is in less than two weeks.
Involving local leaders could increase Cooper’s executive powers. Local governments wield more authority to penalize and fine people for disobeying executive orders. Cooper’s new tactics could push fines, secure the cooperation of more law enforcement officers, and shield himself from lawsuits.
“Instead of pushing local governments to bully the citizens of North Carolina, the governor should enhance efforts to protect those most at risk,” said Lauren Horsch, spokeswoman for Senate leader Phil Berger, R-Rockingham.
Cooper’s move “gives him a clear path to work around the Council of State if they are hostile to his actions,” said Michael Schietzelt, senior fellow at Robertson Center for Constitutional Law at Regent University. “If local control of this isn’t going to be effective, then the governor doesn’t need the Council of State.”
Dr. Mandy Cohen, N.C. Department of Health and Human Services secretary, this week sent 36 counties a letter asking them “to consider additional local actions to improve compliance.” The letter includes an attachment for sample language localities could us.e
Cooper has avoided targeting local areas with COVID-19 mandates, saying the virus doesn’t respect county lines. But his administration now wants local leaders to use their authority rather than ask the legislature or the Council of State for new powers.
If Cooper decides to ratchet up shutdowns, asking locals to do the job first could create another way to bypass the 10 elected members of the Council of State, Schietzelt said.
Local leaders have more flexibility than the state to restrict behavior. They can fine businesses and people without using criminal citations. The state cannot. Statewide penalties for violating Cooper’s executive orders carry the risk of jail time.
“Governor Cooper is attempting to use local governments to punish businesses and individuals doing what they can to survive,” Lt. Gov. Dan Forest, who is running against Cooper, said in a news release. “He has repeatedly said he has full authority over his COVID shutdown, which means he also gets 100% of the responsibility. Passing the buck to local businesses and municipalities is the antithesis of leadership.”
But if local governments refuse to act, they will give Cooper a stronger legal authority to step in himself, said Schietzelt.
All of the counties had 300 or more new cases in the past two weeks, a high case rate, or a “red flag” from the White House Task Force list of counties of concern. Wake, Mecklenburg, and Guilford also made the list because of their population.
Cooper has been tangled in lawsuits since the lockdowns began.
Under his emergency powers, Cooper can take over if local control isn’t working. This approach gives him more leeway legally to expand crackdowns if he chooses, Schietzelt said.
“That’s got two advantages. Politically, this isn’t going to be popular,” Schietzelt said. “By passing it to the counties, he gets to pass the political buck for shutting these areas back down. That’s helpful, given that he’s two weeks away from the election. The second advantage is that he can avoid litigation.”
Cooper also would have a better chance to enforce his executive orders, said Schietzelt.
Law enforcement officers at times have refused to carry out Cooper’s orders. Cooper says he’s more confident in their cooperation.
“We’re asking local authorities to step up their efforts,” Cooper said. “Our local partners are key allies as we continue to fight COVID, and their work is vital. We hope our local communities can work with us to move some of our troubling trends in the right direction.”
North Carolina already levies some of the most severe restrictions in the South. The state’s COVID death rate is significantly lower than its neighbors, especially Georgia.
But North Carolina also has the worst job loss in the South. The state has lost about 300,000 jobs since February. Its September unemployment rate of 7.3% was higher than all its neighbors.
Cooper has repeatedly said he worries about the state’s COVID trends, but he didn’t want to stop reopening the economy. Still, he won’t move the state forward from Phase 3 for another three weeks.