McKenna: ‘The law is the law’ when it comes to lawsuits against lockdowns

May 21, 2020, 9:49 AM | Updated: 11:30 am

Protest, China, lawsuits...

Protesters rally against Illinois stay-at-home order outside the Thompson Center in downtown Chicago. (AP Photo/Nam Y. Huh)

(AP Photo/Nam Y. Huh)

Lawsuits to either enforce or overturn stay-at-home orders have been prevalent across the United States, and Washington state has been no exception. But how much legal standing do these lawsuits have exactly? Former Washington State Attorney General Rob McKenna weighed in on Seattle’s Morning News.

Gov. Inslee calls lawsuit against stay-at-home order heartless

First addressing lawsuits that claim stay-at-home orders are unconstitutional, McKenna points out that the powers ascribed to governors and health officials during a pandemic are broad.

“It’s in the judgment of the local health officer, the state health officer, or the governor to decide what the rules are for businesses staying open or reopening,” McKenna told KIRO Radio’s Dave Ross. “It’s just the way that we have constructed this whole legal framework for emergency proclamations and public health orders.”

Even so, that hasn’t stopped lawsuits like one filed in federal court in Washington, which alleges Gov. Inslee’s stay-at-home order is akin to “unacceptable tyranny.”

While McKenna thinks that the order might be “over-inclusive” in the businesses it shuts down, that’s also a product of how the laws in Washington are written. That makes lawsuits like the one current Washington Attorney General Bob Ferguson filed against a pair of gyms that reopened against the governor’s order that much more difficult to oppose in court.

“I get the argument — the problem is that the law is the law,” he noted. “It’s possible that a business that reopens is extremely careful and all of their patrons are extremely careful, and it’s all fine. But because there isn’t enough certainty around that, (state governments) issue these blanket rules which shut everybody down, and then only gradually allow them to reopen based on epidemiology.”

How long legally can Inslee keep extending stay-at-home order?

Laws on the books that back up the governor’s ability to maintain and enforce shutdowns during a pandemic aren’t anything new either, with many of them dating back centuries.

“It’s been that way for a long time,” McKenna described. “We’ve had epidemics throughout human history, and we’ve had government orders putting people in quarantine [and] shutting down businesses since at least the 1800s.”

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McKenna: ‘The law is the law’ when it comes to lawsuits against lockdowns