Opinion: Daily Journal

Pandemic or not, the governor can’t issue orders unilaterally

On St. Patrick’s Day, Gov. Roy Cooper issued an executive order, and the biggest item in the order was shutting down all bars and sit-down rsestaurants effective 5 p.m. that same day. It limited the sale of food and beverages throughout the state to “carry-out, drive-through, and delivery only.”

The order is a profoundly damaging use of executive authority, immediately sweeping out of work a large segment of workers and businesses across the state. But — given the perils of the COVID-19 epidemic — could it also have been necessary?

Was Cooper’s shutdown the right policy response?

As of now there is no way of knowing for sure. This is an extraordinary time, and in the fog of war, as it were, leaders have to make decisions with imperfect information.

Knowing that, we should be able to make allowances for potential missteps made in good faith. But we should also never forget we are a free state governed by the rule of law, not men. That’s why the N.C. Emergency Management Act makes it clear that, under a declared state of emergency, the governor can exercise his expanded powers only “with the concurrence of the Council of State” (see G.S. 166A-19.30(b)).

That way, before the governor makes his call, other statewide elected officials are persuaded that it’s probably not the wrong call in an emergency.

Premature announcement leads to a hasty rewrite?

Here, however, regardless of whether his choice turns out to be the right call, Cooper acted precipitously. He ruled unilaterally, despite not getting concurrence from a majority of the Council of State as required by law.

Cooper announced his March 17 order at 10:31 a.m. He didn’t seek concurrence from members of the Council of State until over two hours later. His office didn’t notify them of the items in the executive order until 12:42 p.m., asking for their concurrence by 1:15 p.m., a mere half hour later. He had a scheduled press conference to announce it at 2 p.m.

Cooper hadn’t received answers from six members of the Council of State by the time his press conference started. He announced the order anyway.

It turned out the majority of other leaders making decisions in the fog of war were not in agreement over shutting down restaurants and bars.

Was the Council of State’s majority vote against Cooper’s shutdown the right policy response?

Again, as of now there is no way of knowing for sure.

What we do know is that the Council of State opposed shutting down restaurants and bars 6-3 (and one of those three votes was the governor’s). Joining him were Attorney General Josh Stein and Secretary of State Elaine Marshall.

Lt. Gov. Dan Forest did not concur but instead requested the order strongly encourage restaurants and bars limit their operations as opposed to shut them down completely:

I believe there should be flexibility for restaurants & other establishments. I would strongly encourage them to move to take-out and delivery only. We are talking here about shutting down a large swath of business across this state by executive action.

State Treasurer Dale Folwell and Insurance Commissioner Mike Causey wanted more discussion. Folwell also said the order should encourage restaurants and bars to limit their operations but not mandate they shut down:

[The executive order] should highly encourage these limitations on operations, NOT mandate them. The eating establishments that I frequent are two steps ahead. We should honor their tough decisions and the common sense of North Carolinian’s. (Not to mention the total disruption of the LARGEST component of North Carolina’s economy).

Both Forest and Folwell wrote about how much of the state’s economy would be impacted by a shutdown. As of this writing, the state Division of Employment Security reported receiving nearly 200,000 applications for unemployment insurance benefits. Roughly 88% of the requests were related to COVID-19.

Forest, Folwell, Causey, Labor Commissioner Cherie Berry, Agriculture Commissioner Steve Troxler, and Superintendent of Public Instruction Mark Johnson all voted not to concur with the shutdown.

That afternoon, Lt. Gov. Dan Forest issued a press release challenging Cooper’s legal authority to issue the order. It highlighted the majority against concurrence over the shutdown.

Cooper’s order did not get posted on the governor’s web site by 5 p.m., when it was supposed to be in effect. When it was finally posted sometime after 6 p.m., its text did not base the restaurant and bar shutdowns portion on G.S. 166A-19.30(b).

Instead, Cooper’s order based the restaurant and bar shutdowns on very broad readings of public-health laws that give the secretary of Health and Human Services or a local health director the power to abate an imminent hazard (G.S. 130A-20(a)) and the state Health director or a local health director quarantine authority (G.S. 130A-145(a)).

Why? To date, none of the other restrictions in the governor’s COVID-19 Executive Orders strays outside of G.S. 166A-19.30(b). The very fact Cooper requested concurrence from Council of State members on the restaurant and bar shutdowns makes it plain he knew that’s where he drew his authority. Not from statutes concerning localized hazard abatements or quarantines.

Why was the governor’s order so late in publication, despite being announced at 10:31 in the morning? I don’t know, but I think this is likely:

When Forest made it public that Cooper had no legal basis for his shutdown of restaurants and bars, which Cooper had already publicly announced to the press, the governor’s office launched into a desperate, face-saving rewrite, cramming in an extremely generous interpretation of other state laws to try to justify it instead.

The moral of the story

The threat of a pandemic doesn’t mean we allow the government to assume greater emergency powers than the law already allows. This, too, is a threat.

Jon Sanders (@jonpsanders) is director of regulatory studies at the John Locke Foundation.

  • shellyscorner

    Frankly, as one of the “VULNERABLE” group, and having several family member’s that are as well, I’ve personally felt that he hadn’t done enough soon enough. That it’s allowed this to spread farther than it had to. I frankly don’t care if other’s disagree, as I will be constantly checking to see where my ankle monitor has gone… because, I am INDEFINITELY been told that I have to be sequestered, ioslated, quarantined, you pick your word, by my doctor until this is “over”. I do feel like I’ve been jailed. But there’s just not another alternative. He’s made it VERY clear, that IF I get this virus, he doesn’t expect that I would survive it. People have been asked to stay at home, and I’ve repeatedly seen reports of people NOT complying. I don’t get it. It’s not a hard concept to understand. If you catch this virus, are Asymptomatic, you ARE contagious! You go out, you infect say… 5 people… they go out and they EACH infect another 5… then that 25 infect another 5 each… following the math? It’s like skipping a stone across the pond. There are multiple rings that spread out farther and wider than the one before it. But eventually, that spread WILL FIND a person like myself. And that person WILL die. Personally, I have lung disease requiring high flow O2, asthma, and diabetes… The sad thing is, the original person will NEVER KNOW that because of their AVOIDABLE actions someone died. You may be okay with that. I am NOT.

    We are in extraordinary times that require extraordinary measures. The Council of State, was WRONG. There is NO BETTER way to spread this virus than to have large gathering of people int the restaurant in close quarters! You want your friend or loved one to die? Okay… that’s one you. Your okay with catching this virus, even knowing that you MAY survive, but you will likely have severe lung damage, heart damage, and/or kidney damage? Knowing that you will likely need to be on O2 for the rest of your life? That’s on you… We’ll just start handing out Darwin Awards… Just saying… It’s EASY to avoid all that, but I guess that’s not the most important thing right now.

    I AM on oxygen and I can tell you that you DON’T want to go there. The tanks that you have to pull around are HEAVY, they are CUMBERSOME, and you WILL NOT have the physical capacity of old to rely on to carry them around! I use more O2 than most people. I use 6 liters. It’s a lot. As a result of the tanks, I can no longer engaged with family events, not even at holidays, because I can’t carry enough in and out of my home (I would need roughly 10 tanks to drive the hour there and back and spend 2-3 hours there), so it has in essence made me a shut in. So yeah, go ahead, go out, have your fun, but do it with the understand that if you get this and end up hospitalized and have organ damaged… as much as I hate it for you, but its not like you haven’t been warned!

    Please, just stay home… It’s just not worth it! It’s just not. If you have asthma? DEAR HEAVENS! FOR THE LOVE of GOD STAY HOME! This virus WILL KILL YOU. That’s one of the lung issues that they’re talking about when they say people with LUNG DISEASE! Is it boring? Oh HEAVENS yes! Are there other things that I want to do? Yup. What I haven’t told you, is that I just got out of the hospital yesterday after a 4 day stay. I was sent straight from my primary doctor’s office to the ED. I was sick with bronchitis which caused my asthma to flare horribly, which is historically very hard to treat because of my underlying lung disease. Did I have a temp? Did I have a cough? Was I short of breath? Yes, Yes, and Yes. Yes I got the test. Obviously I was admitted. To the “COVID Floor” no less. My test came back negative, which is what I thoroughly expected. It came back remarkably fast, I have suspicions that it might have been pushed through because of my lung issues, because if I was negative, they wanted me OFF the COVID floor immediately as possible so that I DID NOT become positive through cross contamination.

    The next three days were difficult but I’m home now. So yes, this is really, really real! It needs to be treated as such. For ALL our sakes! Please, be careful, take care of yourself and your family members!

  • Lee Wilson