Cities have power to act on COVID-19, if they choose
When Gov. Doug Ducey finally “allowed” local governments to impose mask requirements, local governments acted immediately. But by then, community transmission was already widespread and Arizona’s health-care system was already close to overwhelmed.
Last week, Ducey finally decided to re-close bars, gyms and movie theaters, but his order only closes these high-risk establishments through July 27. It will likely be necessary to extend this shutdown, and it may prove necessary to reclose other parts of the economy.
If we can’t rely on state leadership, Arizona must rely on our local officials to lead. Mayors of Phoenix, Tucson and Flagstaff have indicated during the pandemic that they have had little or no contact from the governor, but that’s only part of the problem.
The governor imposed an executive order that he claims prevents local governments from enacting additional public health precautions. But Arizona law gives cities and counties broad emergency authority, and the governor’s emergency powers do not allow him to limit local authority in this way.
The case for local authority is simple. The emergency laws give cities and counties broad authority to take emergency measures that exceed those taken by the state: “In the absence of specific authority in state emergency plans and programs,” cities and counties “shall take emergency measures as deemed necessary to carry out the provisions of this chapter.”
Arizona’s emergency laws also give cities and counties the authority to declare emergencies and during them “to impose all necessary regulations to preserve the peace and order.” The law offers examples of what cities and counties can do: impose curfews, close businesses and close access to public places. The law does not condition this authority on the governor’s permission.
By contrast, the governor’s claim to block local authority is tenuous. Arizona law allows cities and counties to issue emergency orders that are not “inconsistent with orders, rules and regulations promulgated by the governor.” The emergency laws don’t allow the governor to tell cities they cannot do anything to deal with an emergency. Frankly, that would be insane.
Local leaders may be concerned that taking public health measures may lead to a legal challenge that poses financial risks to their communities.
A law passed in 2016 allows any member of the Legislature to complain to the Arizona attorney general that a local government is acting outside its authority. If the attorney general agrees, the local government can lose a large share of its funding.
But it is far from clear that this law would apply to the governor’s executive authority or to emergency actions of mayors and city managers.
In any case, AG Mark Brnovich shouldn’t sue a city acting responsibly and pursuant to its clear legal authority. He should make clear that he won’t.
Arizona’s COVID-19 crisis requires leadership. We hope that Governor Ducey finally shows that he is up to the challenges our state faces. To be clear, statewide actions are more effective, and we believe are necessary, but if he won’t lead, at the very least, he should make clear to cities and counties that he won’t stand in their way.
After all, the law is pretty clear that he can’t.