On Emergency Powers
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