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Former AG McKenna: Hard to enforce emergency orders as pandemic continues

How far can the government can go in issuing emergency orders to stay home and ordering businesses to close? There’s been a ruling in Pennsylvania that said the governor went too far when he issued a stay-at-home order, limited the size of outdoor gatherings, and told certain businesses they had to close.

Former state attorney general Rob McKenna joined Seattle’s Morning News to discuss the potential national implications of this case, and why governors may have a harder time issuing emergency orders the longer the pandemic lasts.

“Well, in this case, we had plaintiffs — businesses, individuals, and others — who challenged Governor Tom Wolf’s orders that limit the size of indoor gatherings to 25 people and outdoor gatherings to 250 people. They also challenged the idea that the governor of Pennsylvania can tell people they have to stay home and not leave their homes, even though that order is not currently actually being enforced,” McKenna said.

The governor had separated businesses into essential and non-essential categories, and then ordered non-essential categories closed down. This federal court is now saying the governor can’t do that.

“So what we finally have here is the first judge I’m aware of who has said that a particular set of orders has crossed the line from being within the power of government under declared emergency to being unconstitutional, for example, by unconstitutionally restricting our First Amendment right to peaceably assemble,” he said.

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What about this idea that when it’s an epidemic, when it’s a health emergency, the government and sometimes even local health officers have extraordinary powers to, for example, order people to quarantine?

“You and I have talked about the long history of such orders in our country dating back to the 1800s, involving outbreaks of smallpox, and yellow fever, and other diseases,” McKenna told KIRO Radio’s Dave Ross. “But what distinguishes those incidents from what we’re experiencing now is that they lasted a relatively short period of time. Here we are entering our seventh month of this pandemic with no end in sight. And so here we have the first judge, who happens to be a Trump appointee, declaring: The U. S. Constitution cannot accept the concept of a quote ‘new normal’ where the basic liberties of the people could be subordinated to open ended or emergency mitigation measures.”

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Did we have similar lawsuits against Governor Inslee in Washington?

“There have been several,” McKenna said. “There was a lawsuit brought back in May by some state legislators who basically challenged the governor’s authority to issue these orders, and it was knocked out of federal court on jurisdictional grounds. It didn’t get to first base in that case, and it did not get to first base in the case of the lawsuit that Tim Eyman brought, which was also knocked out on jurisdictional grounds.”

Government cannot claim unfettered emergency powers

McKenna says that the longer this pandemic goes on, the more likely we will see such lawsuits pop up, with more judges potentially ruling against governors since it will become more and more difficult to endlessly enact emergency orders.

“More time has elapsed than when the first case in our state was decided, for example, back in May. The longer the pandemic goes on and governors try to continue to enforce emergency orders, the more cases like this you’re going to see, and over time it’s inevitable you’re going to see more judges rule the way this one Pennsylvania federal judge ruled, because at some point it’s no longer a pandemic,” he said.

“It’s a disease which is endemic. It’s not going away. And I don’t think in those circumstances the government can claim that it has unfettered emergency powers anymore than it could try to claim that right now, because influenza comes back every year.”

Listen to Seattle’s Morning News weekday mornings from 5 – 9 a.m. on KIRO Radio, 97.3 FM. Subscribe to the podcast here.

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