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Governors, mayors have strong powers to enforce stay-at-home measures

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The power of governors and mayors to enforce social distancing and stay-at-home policies boils down to statutes and ordinances to determine the extent of an executive’s power. Local governments often have more power than the federal government in these situations.

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“Now, in the case of the state of Washington and, say, the city of Seattle, the governor and the mayor have very, very strong powers to enforce these orders,” Hugh Spitzer, Professor of Law at the University of Washington, told KIRO Radio’s Gee and Ursula Show. “Much stronger powers than I expect they would ever use.”

If the federal government were to lift social distancing guidelines and “reopen” the country as the President hopes to do by Easter, the governors and mayors still retain a lot of control, able to keep their own restrictions in place.

“The federal government is a limited government, and it’s been that way since 1787,” Spitzer said. “And it has much more limited powers than we often think.”

“Police power,” or the ability to regulate over people’s everyday lives, lies in the states and local governments.

“So the federal government could lift its guidelines, but that wouldn’t make any difference in states where the governors, under state law, were continuing to enforce for stringent guidelines,” he said.

So if the majority of the power to keep people home falls to state and local governments, what roles could the National Guard play if they were to be called upon?

Spitzer said under Washington law, the governor can call on the National Guard as necessary, if required for public help, “to execute the laws and perform whatever duties the governor deems proper.”

“Another law says that when that happens, the militia, or the National Guard, becomes an additional police power,” Spitzer said. “So the bottom line is, when it’s really necessary, the militia can be used, or the National Guard can be used along with the police to keep order.”

This has only happened on rare occasion in Washington, and Spitzer doesn’t think it will be necessary here. It happened in 1889 in Spokane after a big fire, and during the WTO riots in 1999-2000.

In terms of the power of mayors, the Edmonds City Council is voting on an ordinance that would enact emergency powers to prohibit people from carrying firearms, among other restrictions.

While the mayor can not make it illegal for citizens to carry guns and weapons, the City Council could through an ordinance, Spitzer said.

“[The] basic principal is, in Washington state, the cities have all the powers that the state has unless the state Legislature has taken them away, or unless the Constitution of the state prevents them from, you know, enacting some ordinance,” he said.

Washington state has a strong right of the individual to bear arms, in defense of oneself or the state, though that does not mean that there can’t be reasonable regulations on carrying firearms.

“[If] the council passes this ordinance, which it might be able to do unless there’s a state statute that says they can’t, you have to look at that carefully — that’s step one,” Spitzer said. “But even if they had the power to do it, then the mayor could only use that power if it were reasonable under the circumstances.”

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So, the short answer is yes: A city can enact a ban on carrying weapons or a similar regulation as long as it is not prohibited by state law.

“I don’t think a city could bar the ownership or use or handling of weapons that would be otherwise legal,” Spitzer explained. “They can’t do that unless there’s really a public safety hazard going on, like riots.”

Listen to the Gee and Ursula Show weekday mornings from 9 a.m. – 12 p.m. on KIRO Radio, 97.3 FM. Subscribe to the podcast here.

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