Stripping Ducey of emergency powers could backfire

“Be careful what you wish for” is a sensible saying that opponents and proponents of the governor’s COVID-19 restrictions should heed. Gov. Doug Ducey has charted a restrained strategy in implementing restrictions that inevitably and unfortunately has enraged people on both sides of the controversy.

Calls to end all restrictions in the name of individual freedom and calls to allow municipalities to issue their own more restrictive rules will make the situation worse for both sides.

There are those who believe that terminating the governor’s COVID-19 state of emergency and related executive orders will end all restrictions and mandates on individuals, schools, organizations and businesses; eliminate mask mandates; cancel limits on public gatherings; and nullify other mitigating steps. They are mistaken.

This is because Arizona law gives similar emergency powers to the chairpersons of county boards of supervisors and to municipal mayors. Astoundingly, if county or municipal law also grants emergency powers to these chairs and mayors, as many do, they are free to act unilaterally without the approval of the their boards of supervisors, city councils and town councils.

So if the Legislature votes to terminate the governor’s state of emergency by majority vote in the House and Senate, the chairs of 15 county boards of supervisors and the mayors of 91 municipalities could be free to unilaterally impose a cornucopia of new regulations or no regulation at all within their respective jurisdictions.

Such a result would be unprecedented within Arizona and the United States and would create a nightmare of conflicting and confusing regulations throughout the state. The unintended negative consequences of such an action would make the “alt fuel” fiasco look like prudent governance.

Even though these board chairs and mayors currently possess these emergency powers, we don’t have a mosaic of rules because state law prohibits them from enacting any rule inconsistent with an emergency rule promulgated by the governor. In other words, it is the existence of the governor’s less restrictive and carefully worded emergency rules that constrain the many mayors who have been openly calling for stricter restrictions from imposing them.

Were the Legislature to terminate the governor’s rules, mayors and board of supervisor chairs could do what they want without constraint.

The likely result of ending the governor’s state of emergency will be that instead of being freed from COVID-19 regulations, most Arizona residents would find themselves governed by the same or even stricter regulations.

After all, the mayors of Arizona’s three major cities have publicly criticized the governor’s actions as not going far enough and I doubt they stand alone in that opinion. In addition, it was the Maricopa County Board of Supervisors who imposed that county’s mask mandate and not the governor.

For those supportive of stricter mandates who might view terminating the governor’s state of emergency as a way to get those stricter mandates implemented where they live, consider how that strategy might also backfire.

Were Arizona to become a mosaic of jurisdictions with conflicting restrictions ranging from the nonexistent to draconian, residents and visitors seeking relief from the tedium of the restricted areas would flock to the packed restaurants, bars and public events in the laissez-faire jurisdictions where they might become infected with COVID-19 — and, ironically, bring the disease back to those jurisdictions that tried the most to control it.

I believe the Legislature should consider entering into discussions with the governor, counties and municipalities concerning reasonable policies for dealing with the current and future pandemics, policies that involve less risk of creating the unintended negative consequences discussed here.