Courts in West Virginia are scheduled to hear two separate cases challenging Governor Jim Justice’s sweeping authority to issue executive orders during the Covid-19 pandemic.
One of the petitions was filed by Alex McLaughlin. The Charleston attorney and father of two school-aged children argues that under the state Constitution, children are entitled to a “thorough and efficient system of free schools.” However, he argues, the school re-entry metric forces some schools to remain closed and thus violates their right to an education.
McLaughlin also argues that Justice has exceeded the powers of a chief executive by continuing a state of emergency since March 16 and failing to convene the Legislature (even remotely) to “hold public hearings, to investigate facts, to take testimony from experts and citizens, to consider data and to pass laws for the continuity of government during this Covid pandemic, laws that reflect the wisdom and will of the people.”
A hearing on the McLaughlin petition is scheduled for this morning in front of Kanawha County Circuit Court Judge Tod Kaufman.
The second petition was filed by Wheeling attorney Martin Sheehan on behalf of 12 Morgantown bars, challenging Governor Justice’s executive orders closing the establishments.
Justice shut the bars down July 14 to try to slow the spread of the virus. In early September, two days after the bars were allowed to reopen, Justice shut them down again after pictures emerged of WVU students and others crowding into bars.
Sheehan argues there was no due process where the bar owners would have had an opportunity to contest the order. He also contends shutting down the bars is tantamount to a taking by the state, similar to imminent domain, without just compensation from the state.
Sheehan will make his case before U.S. District Court Judge Thomas Kleeh.
The attorneys are raising specific questions on behalf of their clients, but what is at stake is the broader issue of exactly how much power the state’s chief executive has during a state of emergency.
West Virginia’s Constitution (Article VII, Section five) reads, “The chief executive power shall be vested in the Governor, who shall take care that the laws be faithfully executed.” That is vague, but a section of the state code (14-5-6) provides more specific guidance.
The Governor can, during a state of emergency, order evacuations, control ingress and egress to and from a disaster area, suspend provisions of regulatory statutes, 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.”
That is a lot of power, and Governor Justice has flexed that executive muscle time after time during the pandemic, always with the argument that he is acting to protect the safety and welfare of the state’s inhabitants.
There are two relevant questions: 1) Should the power be that broad? 2) Should there be a limit on the amount of time a Governor can use that authority without approval from the Legislature?
I understand that some in the Legislature—although they have kept quiet during the pandemic—have been asking themselves these and other questions about executive power. Look for lawmakers to consider bills to restrain chief executive authority when they convene next year.
Meanwhile, with these two legal challenges, and perhaps others, the courts may do it for them.