Closure orders violate Arizona’s Constitution The Mesa Tribune | The Hometown Newspaper for the city of Mesa, AZ

Closure orders violate Arizona’s Constitution

Closure orders violate Arizona’s Constitution

By Alexander J. Lindvall
Tribune Guest Writer

On June 29, Gov. Doug Ducey signed an executive order that closed virtually all of Arizona’s bars, gyms, and movie theaters.

In response to this executive order, dozens of affected businesses filed lawsuits against Governor Ducey, arguing that his executive order was unlawful and unenforceable.

These businesses all made the same three arguments.

They argued that the Governor’s order violated the due process clauses, equal protection clauses, and takings clauses found in the U.S. and Arizona Constitutions.

At bottom, these businesses argued that the governor was unconstitutionally treating bars, gyms, and theaters differently than other similarly situated businesses. Put another way, these businesses argued that it was irrational and unfair to shutdown gyms and bars while allowing salons, restaurants, and other close-quarters businesses to remain open.

At a minimum, these businesses argued, they were entitled to some sort of appeal process and “just compensation” for their lost profits.

The problem: Under well-settled constitutional law, these arguments were dead on arrival.

The Supreme Court has held time and time again that the government may constitutionally discriminate against businesses as long as it has a “rational basis” for doing so.

As Justice William O. Douglas once put it: “It is no requirement of equal protection that all evils of the same genus be eradicated or none at all.”

Given this precedent, both Arizona’s state and federal courts quickly rejected the businesses’ constitutional arguments.

In my view, these businesses omitted a compelling argument from their lawsuits: the Legislature unconstitutionally delegated its lawmaking power to the Governor, making his executive order unlawful.

In issuing these executive orders, Governor Ducey has been relying on A.R.S. § 26-303 – the statute in which the Arizona Legislature gave the Governor “complete authority over all agencies of the state government” and “all police power vested in the state” during a state of emergency.

Article III of the Arizona Constitution, however, provides: “The powers of the government of the state of Arizona shall be divided into three separate departments, the legislative, the executive, and the judicial; and…such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others.”

Each branch of government has its own “core” function: the Legislature makes the law, the Executive enforces the law, and the Judiciary interprets the law.

Consistent with this basic separation-of-powers principle, the Arizona courts have consistently held that the Legislature cannot delegate its core lawmaking power to another branch.

To my eye, A.R.S. § 26-303 clearly violates Article III’s non-delegation principle.

In this statute, the Legislature gave the Governor “all police power vested in the state” during ill-defined states of emergency.

In other words, during a “state of emergency,” the Governor has complete control over the entire Arizona state government.  This is the exact sort of delegation Arizona’s Constitution forbids.           

The Legislature cannot give its lawmaking power to the Governor for two main reasons.

One, it gives one person too much power.  Allowing one person to make and enforce the law inevitably leads to corruption, unevenness, and political retributions.  Two, it allows legislators to dodge political responsibility.

Making the governor bear the full political weight of this pandemic is cowardly, lazy and unfair.

Dealing with a shifting pandemic is tricky – but we elected our representatives to make difficult decisions in difficult situations.

They should not be allowed to shirk their responsibilities onto the Governor and absolve themselves of political accountability.  The political fallout of this pandemic should not fall on one man.

As the Arizona Supreme Court has often repeated: “Nowhere in the United States is [separation of powers] more explicitly and firmly expressed than in Arizona.”

Plaintiffs challenging the governor’s executive orders would be wise to keep this in mind.    

Alexander J. Lindvall is Assistant City Attorney for the Mesa City Attorney’s Office.

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