What is a Governor’s power during an emergency?

Extremists are given to hyperbole.

The other day, between 50 and 75 people gathered outside the State Capitol to protest Governor Justice’s stay-at-home order.  One of the protesters held a sign that read, “I prefer dangerous liberty over peaceful slavery.”

Since when is the order that people, who do not have to perform essential services, remain in the comfort of their homes to avoid contracting and spreading a dangerous disease tantamount to the forced bondage, violence, and humiliation associated with slavery?

Last Friday, Wendy McCaw, the publisher of the Santa Barbara (California) News-Press wrote an editorial criticizing California Governor Gavin Newsom’s executive orders to try to curtail the virus.

“If this country can be put into this situation by a virus, what would it take to completely turn us into the Soviet Union or Nazi Germany?” she asked.  “We are not that far away now.”

I am not a historian, but I recently finished the book The Rise and Fall of the Third Reich.  To suggest that Newsom’s orders are one step away from Nazism is like saying a gnat is like jet plane because they both fly.

Then there are more rational arguments about the power of government.

A handful of conservative members of the West Virginia House of Delegates have sent a letter to Governor Justice criticizing what they call the “overzealous actions taken by our own state government in response (to the pandemic), some of which have given cause for grave concern.”

They argue that the executive orders represent “potential infringement” of Constitutional rights, including peaceful assembly and the exercise of religious worship.

West Virginia Attorney General Patrick Morrisey, while generally supporting the Governor’s orders, did tweet out that there should be a more thorough examination of executive power.

“After this pandemic subsides, we’ll need to have a national conversation about the proper role of government during a statement of emergency,” he said.

West Virginia’s Constitution does not specifically address the issue.  However, Article VII, Section five, says, “The chief executive power shall be vested in the Governor, who shall take care that the laws be faithfully executed.”

The first part of that sentence is key because it establishes the Governor as the person in charge.  The emergency powers for the chief executive are then defined in state code, 15-5-6.  The Governor has authority to act to protect “the safety and welfare of the inhabitants of the state.”

The Governor can, during a state of emergency, order evacuations, control ingress and egress to and from a disaster area, suspend provisions of regulatory statues, and, most broadly, “Perform and exercise other functions, powers and duties that are necessary to promote and secure the safety and protection of the civilian population.”

Yes, government is limited, as it should be. The Founders made clear those limitations while ensuring individual freedoms in the Bill of Rights. However, government, and in this case the West Virginia State Government, has a responsibility to act as it says in the preamble of State Constitution, “for the common welfare, freedom and security of ourselves and our posterity.”

West Virginia’s government has a legitimate reason and legal authority to carry out those responsibilities during this pandemic.


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