Actions deserve legal scrutiny
Courts should be welcomed to review Gov. Ralph Northam’s measures in this extraordinary time
t is perfectly legitimate — appropriate, even — for individuals and groups across the commonwealth to question the decisions by Gov. Ralph Northam and local officials made during the coronavirus crisis.
Public health officials insist these measures are necessary to slow the spread of this disease — an approach that appears to be bearing fruit. But it’s also reasonable to ask the courts confirm the legal authority behind them, since that exercise will determine whether the governor’s power is suited to an emergency such as this.
Northam moved slowly at first to encourage, and then mandate, social distancing by closing nonessential businesses and prohibiting large gatherings. That effort gained steam in recent weeks as the governor shuttered schools for the rest of the academic year and issued a stay-at-home order that limited use of beaches, among other things.
These actions were taken through executive orders 51 and 53, which cite Article V, Section 7, of the Virginia Constitution and provisions in the Code of Virginia in arguing Northam has that authority. In particular, the Emergency Services and Disaster Law (§ 44-146) gives the governor broad powers to act in a disaster.
Specifically, § 44-146.17 grants the executive the authority and latitude to make sweeping changes to public life, from the acquisition and allocation of resources to evacuation orders and action “deemed necessary for the preservation of life.”
There is also specific mention of “executive orders declaring a state of emergency may address exceptional circumstances that exist relating to an order of quarantine or an order of isolation concerning a communicable disease or public health threat that is issued by the State Health Commissioner.”
There should be no argument about whether the coronavirus represents exceptional circumstances and that the threat to public health is both real and immediate. But does that empower the governor to determine which businesses are essential, or which gatherings might be legal under federal law though state officials may object?
That’s a good question, and one likely to end up decided by the courts.
Last week, the Virginia Citizens Defense League and several other groups petitioned for a temporary injunction against Northam’s Executive Order 53, arguing that the closing of gun ranges was an illegal violation of citizens’ rights.
The lawsuit claims that Northam overstepped his bounds by closing gun ranges since his order runs afoul of other sections in Virginia law and in the state constitution that allow the right to keep and bear arms. It asks that enforcement of the order be suspended and indoor gun ranges be reopened.
Also last week, a resident of Russell County sued Northam, arguing “the governor’s stay-at-home order … infringed on his religious freedom and sought, at a minimum, an exception that would allow attendance at Easter services,” according to Associated Press reporting.
The plaintiff ’s lawyer wrote in the lawsuit that by limiting gatherings to 10 people and applying that standard to religious gatherings but not to media organizations, the order “contains the value judgment that freedom of religion is less important than freedom of the press.”
Russell County Circuit Court Judge Michael Moore on Thursday declined the petition for an injunction and left the order in effect for Easter. The lawsuit about gun ranges is scheduled to be heard in Lynchburg at 10 a.m. today.
At least two other lawsuits challenging parts of Northam’s orders, or the orders in their entirety, have been filed. It wouldn’t be surprising were more to follow.
Obviously, there are politics at work here. The VCDL, for one, is no fan of the governor, and challenging this limitation on firearm usage is another chance for the group to stem the tide of gun control in the commonwealth.
However, it is important for Virginia to know Northam has acted legally here and that the powers vested in that office work as intended. Businesses should remain closed and people should stay home regardless, but the courts should be welcomed to review the governor’s actions in this extraordinary situation.