NOTE: On May 18, 2020 a Baker County, OR judge invalidated the governor’s restrictions on businesses and social gatherings, along with every other executive order Brown has issued under a state of emergency she ordered due to the COVID-19 pandemic. https://bit.ly/3dYTwM6
By Glen Wagner
One thing I have not seen addressed enough in regards to Oregon Governor Brown’s actions related to the COVID-19 situation is the literal unconstitutionality and illegal nature of her Emergency Declaration or her blatant continued violation of the constraints placed on her from the Oregon Constitution.
Willamette University professor Paul Diller has bloggedabout the matter, arguing that Brown’s emergency orders should have an expiration date, and Willamette Week has written about his argument, but that’s it.
In my view, a basic reading of Section 6.1 of Article X-A of the Oregon Constitution (found at https://www.oregonlegislature.gov/bills_laws/Pages/OrConst.aspx) clearly states that emergency powers shall not extend beyond 30 days from the time of proclamation, after which the articles will expire.
Section 6.2 of Article X-A says that a 3/5 approval of the Legislative Assembly is required to extend the date beyond 30 days. Section 6.5 of Article X-A says that the Governor cannot issue a second proclamation for the same emergency.
Gov. Brown declared the COVID-19 emergency on March 8th. Per the Oregon Constitution, the emergency legally ended on April 8th. As far as I know, the Legislative Assembly did not vote to approve a time extension. Therefore, any of the Governor’s current actions justified by this emergency declaration are fundamentally unconstitutional.
Gov. Brown’s Emergency Declaration states it is to last 60-days. The declaration itself is in violation of Section 6.1 of Article X-A in the state constitution.
The governor’s Emergency Declaration further claims the 60-day term “can be extended or terminated by the Governor”. Per ORS 401.204 the Governor (or the Legislature) can terminate the emergency, but it does NOT give the Governor the authority to extend it. Article X-A Section 6.2 makes it clear ONLY the Legislative Assembly can do this.
According to ORS 401.165.1 the declaration needs to specify an area “no larger than necessary to respond to the emergency.” 433.441.2(b) Says it should state the political subdivision or geographical area subject to the proclamation. Governor Brown’s Emergency Declaration states the emergency to be “state-wide”.
While public health information is listed within the declaration, it is not a foregone conclusion that all counties in the state had equal risk of infection and not all asked for an emergency to be declared. The purpose of the limited geographical nature of an emergency is to ensure focus of state resources and limit emergency powers to a specific area. In can be argued that by making it immediately state-wide the states and county resources were de-focused and spread thin rather than concentrated at the points of highest risk such as in urban areas. While not in violation of the law, it is surprising no one in the legislature raised any challenge to this scope determination.
ORS 433.441.2(d) Says the proclamation must contain a duration IF LESS THAN 14 days; in other words, there is a statutory limit on the Public Health Proclamation of 14 days. Governor Brown’s Emergency Declaration clearly violates this requirement by stating a 60 days duration.
ORS 433.441.5 Says the proclamation expires when the Governor declares it or NO MORE THAN 14 days after the proclamation. The Governor can extend the duration by another 14-day period (1) for a total of 28 days. This is in compliance with the Constitution’s Article X-A since it is within 30 days. It does NOT give the right to the Governor to extend the duration indefinitely. Therefore, Governor Brown’s Emergency Declaration of 60-days and that the Governor can extend the time frame is in violation of this statute.
ORS 433.452 Says that it is reasonable for the state to detain an individual who has been exposed to the reportable condition only for the time necessary to collect contact tracing information. The individual is to be educated on the nature of their exposure. Nowhere can I find in this statute where the Governor is given the authority to detain ANY or ALL individuals who have not been shown to have been exposed to the reportable condition. Her order indicated only 14 people in a state with a population of over 4 million had contracted COVID-19 and only in a small geographical location. There was no justification for and no legal right for the Governor to issue a stay at home order for healthy individuals. Likewise, even if this order had been legal it should have expired on April 8th like everything else.
Therefore, the Governor has exceeded her authority to detain unaffected individuals and for durations far exceeding anything allowed in the state constitution or statutes.
The Governor just issued an extension to her originally unconstitutional declaration, which is an actual illegal act to the aforementioned references. In addition, she cites two statutory references: ORS 401.165 and ORS 401.204 as justifications of her right to extend the emergency for another 60 days.
401.165 only states the Governor’s ability to issue a declaration, which she already did on March 8th. 401.204 pertains to ENDING the emergency, not extending it. And then to sound all legal she says it is all under ORS 401.025. All this section does is define some terms for the rest of the statute. Basically, they included these references to give an air of legitimacy when in fact they have no bearing on the extension proclamation at all. This shows culpability and intent to continue to violate our laws.
Where is the push-back?