As the coronavirus wreaks havoc with the health and economy of the nation, some state governors have taken unprecedented action in a desperate effort to stem the spread of the disease. Such extraordinary emergency measures have come in the form of “executive orders” closing businesses, seizing private property, restricting travel and demanding citizens stay at home to combat the pandemic. These events beg the question, under what legal authority may a state’s chief executive take unilateral action to deal with a public emergency? The Supreme Court of the United States addressed a similar issue sixty-eight years ago in the case of Youngstown Sheet & Tube Co. v. Sawyer.
On April 8, 1952, to avert a nationwide strike of steel workers which he believed would jeopardize national defense at the height of the Korean War, President Truman issued an executive order directing the Secretary of Commerce, Charles Sawyer, to seize and operate the nation’s steel mills. The order was not based upon any specific statutory authority.
The mill owners immediately sued in federal court, arguing that the President’s executive order was unconstitutional since it amounted to lawmaking, a legislative function which the U.S. Constitution expressly reserves for Congress. In reply, the Government argued that the executive order was necessary to avert a national catastrophe which would inevitably result from a stoppage of steel production, and that in meeting this grave emergency the President was acting within the powers vested in him by the Constitution and laws of the United States as the Chief Executive and Commander in Chief of the Armed Forces.
The case promptly made its way to the Supreme Court where a majority of the justices disagreed with President Truman’s expansive interpretation of executive power and held that he had no authority to seize the steel mills. The Court explained that under the Constitution of the United States it was the role of the legislative branch to make law, while the executive branch was tasked with executing it.
The President’s power, if any, to issue such an emergency order must stem either from an act of Congress or from the Constitution itself. Absent congressional authority granted by statute, or a provision in the Constitution, the President of the United States has no inherent power to assume the role of lawmaker in times of emergency. In the words of the Supreme Court, “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”
Like the President of the United States, the power of state governors to issue executive orders also involves a constitutional balancing act. Although the authority of a governor is usually defined by the state constitution, the principles espoused by the U.S. Supreme Court in its Sawyer decision generally apply to the authority of a state’s chief executive.
By way of example, on March 23, 2020, Virginia’s Governor issued Executive Order #53, cancelling the remainder of the academic school year for grades K-12, and closing all restaurants, bars, theaters, museums, concert venues, fitness centers, barbershops, amusement parks, indoor shooting ranges, public and private social clubs, and all other places of indoor public amusement. A week later, the Governor issued Executive Order #55, prohibiting “all public and private in-person gatherings of more than ten individuals,” including all “parties, celebrations, religious, or other social events, whether they occur indoor or outdoor,” except for essential businesses and family members living in the same residence.
To what extent do these executive orders amount to an unconstitutional effort by Virginia’s Governor to assume the role of lawmaker? After all, Executive Orders #53 and #55 have the full force and effect of law, with violations punishable as a Class 1 misdemeanor. Yet, Article IV of the Constitution of Virginia expressly dictates that the General Assembly make laws within the Commonwealth. Like the President under the U.S. Constitution, the duty of the Governor under Virginia’s Constitution is to, “take care that the laws be faithful executed.” So, if Virginia’s Governor is no more of a lawmaker than the President of the United States, how can he issue an executive decree which has the full force and effect of law?
The answer lies in the preamble to his executive orders, wherein the Governor cites the authority granted to him by the General Assembly pursuant to Virginia Code § 44-146.17. This statute, first enacted into law in 1973, grants extraordinary powers to Virginia’s Chief Executive in times of emergency. Specifically, the statute provides that “The Governor shall be Director of Emergency Management,” with authority to:
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- “issue such orders as may, in his judgment, be necessary to … control, restrict, allocate or regulate the use, sale, production and distribution of food, fuel, clothing and other commodities, materials, goods, services and resources….”
- “direct and compel evacuation of all or part of the populace from any stricken or threatened area … and control ingress and egress at an emergency area, including the movement of persons within the area and the occupancy of premises therein.”
- “address exceptional circumstances that exist relating to an order of quarantine or an order of isolation concerning a communicable disease of public health threat that is issued by the State Health Commissioner for an affected area of the Commonwealth….”
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Without the legislature’s express grant of such emergency powers to the Governor of Virginia, he would have doubtful authority to issue such legally binding executive orders. Still, even the statute granting such authority must, itself, pass constitutional muster. For instance, the General Assembly cannot pass a law authorizing the Governor in times of emergency to ignore or otherwise violate the U.S. or Virginia Constitutions, nor does the grant of emergency powers under Virginia Code § 44-146.17 allow the Governor to issue orders in violation of constitutionally guaranteed rights. These same legal principles apply in all fifty States.
Inevitably, questions will be asked as the nation’s governors enact various restrictive measures to combat the pandemic. If a governor prohibits all public and private gatherings for religious services, does he/she violate the First Amendment’s right to freedom of religion? Is it a violation of the Second Amendment’s right to keep and bear arms if a governor orders the closing of all gun stores, effectively preventing the sale of guns and ammunition within a state? When an executive order encroaches upon constitutional rights, legal challenges generally follow, and it is likely that the courts will be called upon to address and define these issues as state governors take unprecedented measures in the fight against the coronavirus.
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