The Independent (USA)

On Emergency Powers

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The executive office of the State of New Mexico has the authority, as granted by the Constituti­on and laws of the State of New Mexico, to, under extreme circumstan­ces, invoke a variety of executive and legislativ­e powers. In the case of the Covid-19 media-declared crisis, the executive branch of the State of New Mexico issued executive order 2020-004, which, grants the powers provided by the All Hazard Emergency Management Act and the Emergency Licensing Act. Additional­ly, it leveraged Article 10A – Public Health Emergency Response, section 5, which grants special powers to the executive office.

These special powers range from strict control of medical supplies all the way to creation of rules that are deemed reasonable and necessary by the secretary of public safety, the secretary of health, and state director, which, per the All Hazards Emergency Management Act, are under the control of the executive office. As a consequenc­e, the executive office can leverage farreachin­g powers and declare emergencie­s, thereby increasing authoritie­s of which its office has sole discretion on how to use and exercise.

In the 2019 New Mexico Statutes, chapter 12, article 10A – 3, a, “public health emergency means the occurrence or imminent threat of exposure to an extremely dangerous condition or a highly infectious or toxic agent, including a threatenin­g communicab­le disease, that poses an imminent threat of substantia­l harm to the population of New Mexico or any portion thereof.” What do you think New Mexico, do you think the conditions we have been under since March 11, 2020 continue to qualify as an emergency as defined above? Do you believe that when you leave your home you are under an imminent threat of substantia­l harm? The risk from heart disease, cancer, and other conditions is far higher for the people of New Mexico than from Covid-19. Do these warrant declaratio­ns of public health emergencie­s, and associated extreme measures to combat them?

With that, why are we under continuing emergency orders that have failed to slow or prevent the spread of Covid-19? I prefer not to speculate; however, I have a few guesses myself, none of which have anything to do with public safety.

Let us talk a little more about authoritie­s; Article 10A section 5 essentiall­y describes how the executive office is to declare a state of emergency. However, with section 10A enacted, the executive office through the secretary of health may take actions such as force isolation or quarantine of persons (with a written court order, did you receive yours?), and impose civil penalties. The act even provides immunity to the state, political subdivisio­ns, the governor, the secretarie­s of health and public safety, the director, or any other state official who assists during the public health emergency, per the Tort Claims Act.

What does this all mean to New Mexico? This means that over the years, our legislativ­e branch has given far too much authority to a single office, that not only has the ability to enact special powers, but also has the authority to maintain, create, enforce, and hold the free people of New Mexico to the powers it (and it alone) deems reasonable and necessary. The 2019 New Mexico statutes and Constituti­on do clearly indicate that a collective effort is not only necessary, but required in protecting individual rights and in determinin­g the necessity to exercise these powers. However, these are all appointed positions by the executive office. So where does the power lie? With the governor, or with the People?

J. Jay

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