In novel crisis, where’s the line on the governor’s emergency powers?

In extraordinary times, everyday life has been altered dramatically by the use of extraordinary executive powers.

When asked last week about determining the necessity or limits of actions taken during an emergency, Gov. Jim Justice pointed to an even higher power.

“The first standard with me is a lot of prayer. Not only are you dealing with life, you’re dealing with an economic potential catastrophe as well,” Justice said.

On tough decisions, “I’ll make them as best I can, but I do believe the good lord put me here to be in this position.”

The limit is set, he said, by the questions that nag at him. His best trait, he said, is “the ability to always doubt myself.”

It may provide some assurance that the governor acknowledges self-doubt and seeks spiritual guidance, but the question was actually about what standards the chief executive uses to determine the limits or necessity of invoking government’s enormous powers.

That question has run through public discourse in West Virginia and other states throughout the coronavirus pandemic as governors have assessed the extent of actions to restrict the normal activity of citizens to slow the spread of virus.

Starting in mid-March, Governor Justice issued a series of orders expanding state government’s normal authority to deal with the coronavirus pandemic.

The first included restricting visitation to West Virginia nursing homes, a standard that continues. He announced a state employee travel ban. He halted the state basketball tournaments and closed schools, eventually deciding students will not return this year.

He closed bars and restaurants, except for takeout, and now may begin to reopen them. He suspended the deadline for tax filings. He delayed the state’s primary election.

Like other governors, he issued a “stay-at-home” order that closed businesses except for some sectors such as healthcare providers or grocery stores that are considered “essential.”

The Justice administration is now incrementally easing the restrictions, starting with a “safer-at-home” order that allows gatherings of up to 25 people but still advises people that they are less likely to spread virus if they remain at home.

As West Virginia assesses whether the original restrictions remain appropriate, state leaders are discussing the limits of executive power.

West Virginia’s attorney general has said once the pandemic subsides, there should be a broad conversation about emergency powers.

A group of conservative delegates has sent a letter questioning whether the restrictions instituted by the state have been overzealous.

The Speaker of West Virginia’s House of Delegates has said he is open to such a discussion while acknowledging significant latitude in the executive branch’s emergency powers.

And a representative of ACLU West Virginia says government restrictions in an emergency may be justified if they include a clear timeline, if they are backed by evidence of their necessity and if they are applied in a nondiscriminatory way.

Justice’s orders are based on his own State of Emergency declaration on March 16 and a section of state code describing the governor’s emergency powers.

The orders cite one of those powers giving the governor the authority “to control ingress and egress to and from a disaster area or an area where large-scale threat exists, the movement of persons within the area and the occupancy of premises therein.”

In other words, Justice has been citing the large-scale threat of the virus to restrict people’s movements.

“I think the governor stepped up and did a lot of good things early,” said West Virginia Attorney General Patrick Morrisey, a Republican.

“But we’re talking about very significant emergency powers, and we want to make sure there are systems, locally, on a state level, on a federal level, where people’s constitutional protections are upheld.”

Reflection about the restrictions 

Morrisey recently said on social media that a broad conversation will be necessary about the proper role of government during a state of emergency. “Next time, we’ll want future leaders to apply lessons learned from this emergency,” he wrote.

He also wrote, “Constitutional rights & civil liberties cannot be wiped away by a state of emergency. Some emergency decisions made a month ago may not be justified from a constitutional perspective now.”

Morrisey, speaking on MetroNews’ “Talkline” last week, said the conversation should focus on assurance of constitutional protections such as due process and privacy.

“We have a duty to get it right and make sure people know the legal standards of people making the decisions,” he said.

He added, “They key issue is that as facts change related to this pandemic, that’s when the analysis is to whether the compelling governmental interest still remains or whether it’s being appropriately narrowly tailored to fit the facts at hand.”

What standards apply to emergency powers?

Eli Baumwell

Assessing whether government officials have used their emergency powers appropriately equates to several basic standards, said Eli Baumwell, policy director with the American Civil Liberties of West Virginia.

Those include “transparency that the government is clear about what the rules are and how they are applied” and “is there a clear delineation on how long these emergency orders are in effect?”

Also, “Is it backed by science, and is it being applied in a non-discriminatory way?”

Mental exercises applying those standards are easier in a more common, more limited emergency such as a flood, tornado or winter storm.

“It’s a little bit harder to visualize when you look at this pandemic that could stretch on for months and covers everyone,” Baumwell said.

Still, Baumwell said, the same principles apply.

“Any of these orders, we want transparency and want to make sure they are backed by science and medical experts,” Baumwell said in a telephone interview last week.

“The government has to have a compelling interest. And the way they get there has to be the least restrictive way of meeting the interest.”

In most cases, he said, state officials have been able to explain their reasoning.

“I think, frankly, the AG and the governor have come out with a pretty good standard in West Virginia, which is they can act within what our code says, but they can’t go beyond written law. They can change rules but they can’t change law,” Baumwell said.

In instances of disagreement, he said, the check is the court system.

“Courts are always there to be an arbiter on these kinds of issues. Overall, we have see that be the case,” he said.

Specific examples of powers exercised

A few specific issues from Justice’s orders may receive further exploration.

The original stay-at-home order concluded that “locations where people congregate unnecessarily and/or fail to follow adequate social distancing practices are therefore areas of large-scale threat and emergency.”

The order “directed” everyone in the state to stay in their place of residence unless performing an essential activity, which wound up being a fairly extensive list of obtaining food or medicine, getting non-elective medical care, going to a workplace considered essential, going to a place of worship or even engaging in an outdoor recreational activity.

The order went farther by shutting down business activities, although that still left 24 categories of essential services to remain open.

“With a lot of these stay home orders, they were not actually ordering people to stay home in their houses. They were orders that closed a lot of businesses, closed a lot of state parks, and those are within government purview. Businesses are open by government permission; that’s the way it works,” Baumwell said.

But, in addition to the directive to stay home unless engaging in an essential activity, subsequent orders applying to places considered hotspots did limit groups gathering to no more than five people.

The recently-eased restrictions have been limiting groups of more than 25.

How such an order is enforced is a key aspect of the question, Baumwell said.

“So, sometimes the how is just as important as the what,” he said. “To have it lead to more arrests, which would put people in a jail situation, which would increase their vulnerability, is not a good way to do that.”

Gathering for worship

For worship gatherings, the stay-at-home order designated religious entities as essential, advising that those who continue to attend should practice proper social distancing.

Guidance provided for religious entities as the state starts easing restrictions were stated as “best practices,” including adding additional worship services, encouraging worshippers 65 and older to stay home and watch online, encouraging those who attend to wash their hands and wear masks to protect others and equipping ushers and greeters with gloves and masks.

“When the government is giving advice that don’t carry the force of law, they’re going to have a lot more flexibility to do that,” Baumwell said.

Travel directive

In another aspect of the closures, the governor in early April directed police to monitor roads and check on travelers from coronavirus hotspots.

That was part of an executive order mandating that people entering the state from other hotspots must quarantine for two weeks or face an obstruction charge.

The directive prompted questions about whether it would violate the Fourth Amendment’s protections against unreasonable search and seizure.

“It was applied in a way that was, frankly, discriminatory,” Baumwell said.

When Justice was asked about the travel directive during a news briefing,the governor said he “wants to be really respectful of constitutional rights but people are dying all over this country right and left.”

That position caught the eye of state Delegate Pat McGeehan, R-Hancock.

“At one point, the executive explicitly asserted that though an order was indeed thought to be unconstitutional, it would be issued nonetheless,” McGeehan said.

Abortion facilities as medical procedures were halted

And another order from late March suspending elective procedures was interpreted by Morrisey as applying to abortion facilities.

That became an issue in other states such as Texas and Ohio, where the interpretation was tested in the federal court system.

Women’s Health Center of West Virginia filed suit over the interpretation in federal court in late April, contending the procedure is essential and time-sensitive. The case was dismissed this week after a new order by the governor lifted restrictions on medical procedures.

But, Baumwell said, “It gets back to that timeframe. These orders, especially these restrictions on medical procedures didn’t necessarily have a clear ending.

“Because it was ambiguous when those orders would end it meant those people would not be able to get that treatment at all.”

Legislative questions 

A group of conservative West Virginia legislators sent a letter last week expressing concern about how emergency powers have been applied.

Under dire emergencies, they wrote, it is acceptable for government executives to invoke unusual powers.

“However, it is only right and proper for self-governing people to question the source and limits of these powers, which by their natural sovereignty must be few and defined,” the delegates wrote.

The letter was signed by delegates Pat McGeehan, R-Hancock; Chris Phillips, R-Barbour; Mark Dean, R-Mingo; Marshall Wilson, I-Berkeley; Jim Butler, R-Mason; Scott Cadle, R-Mason; and Larry Kump, R-Berkeley.

Pat McGeehan

“While no one doubts the genuine good intentions at work here, there are serious questions that need to be addressed,” McGeehan said in a text.

“What is perhaps most concerning is that the executive has conceded no limits to the political power that could be brought to bear — or the length of time that such extraordinary powers could be pursued.”

McGeehan said citizens need more detailed justification for the actions than the emergency authority to control ingress and egress to and from a disaster area or an area where large-scale threat exists.

“The motion that a few vague phrases of a statute can somehow delegate to the executive branch the power to decree, by fiat, what amounts to mass house arrest over the residents of this state is an incredibly asinine innovation — and, if left unchallenged, a danger in the long term,” he said.

The delegates, in the letter, asserted that emergency powers “can never be long-lasting” and “can never be left unrestrained.”

The delegates contend that the pandemic has resulted in a false choice between “a command-and-control economy” or “an oblivious and uninformed state” — “one that is carelessly committed to taking zero precautions.”

They conclude that a novel virus does not require novel government powers. They urge greater involvement of the Legislature.

“It is hoped that an appropriate balance of power is soon restored and that these excesses by the executive will be checked,” they wrote.

Letter about executive power (Text)

House Speaker Roger Hanshaw, R-Clay, said he is open to that conversation

“I think it’s right to ask the question, What ought the authority of the governor be in circumstances like this,” Hanshaw said last week on MetroNews “Talkline.”

“We know we want the governor to be sufficiently empowered under the law, properly, under the circumstances like this, to be able to respond to crises.”

But he said that power is usually balanced by the other branches of government, including the Legislature.

“What should that balance of power be? We’re going to be looking at that for the next several months after all this is over.”

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