Opinion: CJ Opinion

Lawsuit asks courts to declare COVID-19 emergency is over

Gov. Roy Cooper at a Jan. 6, 2021, COVID-19 briefing. (Pool photo)
Gov. Roy Cooper at a Jan. 6, 2021, COVID-19 briefing. (Pool photo)

Restraints on government power tend to loosen during times of emergency. That’s a key reason to ensure that official “emergencies” last no longer than absolutely necessary.

A lawsuit filed this month in Carteret County asks state courts to declare that North Carolina no longer faces an emergency in its response to COVID-19. Such a decision would block Gov. Roy Cooper from exercising extra powers he assumed more than a year ago.

Cooper has been making often unilateral decisions since March 2020 about closing and reopening businesses and schools, as well as setting limits on the number of people who can gather indoors and outdoors. He even mandated that North Carolinians wear masks in public places.

The governor has relaxed many of those restrictions in recent weeks. Yet he has not closed the door on the COVID-19 emergency. He could reinstate restrictions at any time. He would rely on his broad interpretation of the state’s Emergency Management Act.

“In order for a State of Emergency to exist, the emergency must be present, immediate, and existing, and not a condition which may or may not arise in the future or one which is about to arise or may be expected to arise,” according to the complaint filed May 7. Plaintiffs in the case are the Moore County-based activist group Freedom Matters NC and former state Republican Party official Michele Nix.

The suit goes on to explain why current conditions argue against a “present, immediate” emergency existing in North Carolina today.

“There have been declines in the percent of emergency department visits related to COVID-like illness,” according to a news release based on the complaint. “There have been declines in the daily diagnoses of COVID-19, [t]here have been declines in the positive tests for COVID-19, and [t]here has been a decline in the number of COVID-19 associated hospitalizations.”

Attorney Chuck Kitchen placed the number of serious COVID cases in perspective. “North Carolina’s population according to the U.S. Census Bureau was determined to be 10,488,084. As of April 5, 2021, 907 individuals were hospitalized in North Carolina with COVID-19. That is 0.009% of the total population.”

For Kitchen and his clients, the conclusion is clear: COVID-19 no longer merits an official state of emergency.

“If a state of emergency no longer exists, Governor Cooper’s authority to continue to issue Executive Orders is terminated,” according to Kitchen’s news release.

Lydia Boesch of Freedom Matters NC explained to Carolina Journal why she decided to challenge the governor’s actions. She saw Cooper’s orders generating fear among friends and neighbors.

“This fear has caused people to relinquish their freedoms and accept anything the government says to them,” Boesch told CJ. ”They don’t want to be the only one to stand up, and they allow themselves to be intimidated.”

Suit or no suit, Boesch wants Cooper to lift all remaining restrictions.

“There is no emergency anymore,” she said. “Why should Roy Cooper have the power to continue to dictate to everybody in North Carolina how they can live their lives? We felt like the courts were the only ways to end his emergency powers.”

Much of the argument in Freedom Matters NC v. Cooper focused on the mask mandate. “Plaintiff’s members have been denied access to shops and stores as they were not wearing face coverings as mandated by the Defendant Cooper’s Executive Orders,” according to the complaint.

“This Plaintiff, in accordance with its mission to protect freedom in North Carolina, seeks to vindicate its constitutional rights and the rights of its members due to the unconstitutional … acts of the Defendant Cooper, including without limitation, their rights to personal dignity and autonomy, to be free from the forced wearing of masks, and to be free from the issuance of Executive Orders when a state of emergency does not currently exist.”

With Cooper ending the mask mandate on May 14, a week after the lawsuit, it’s hard to imagine a court wanting to leap into that aspect of the dispute. Yet the overall challenge to the state of emergency remains.

“We really aren’t in an emergency any longer,” said Jon Guze, senior fellow in legal studies for the John Locke Foundation. “Any reasonable definition of emergency — this has to be a situation that is emergent. It’s something new and urgent that has to be dealt with immediately.”

“The whole reason we have an Emergency Management Act — the only constitutional justification for delegating these kinds of powers to the governor, because really these are legislative powers — is because this is a situation that is so urgent and that has emerged so suddenly that there’s not time for the legislature to meet and deal with it,” Guze added.

It’s not clear how courts will respond to the argument. But those who are concerned about government stepping beyond its constitutional limits will watch closely.

An “emergency” that has lasted more than 440 days should concern us all.

Mitch Kokai is senior political analyst for the John Locke Foundation.