RESPONSE TO LEGAL OPINION, May 8, 2020
Requested by Mr. Neal Davis
The following is a response to the legal opinion provided by John F Driscoll, Jr., Chief Civil Deputy Prosecuting Attorney for Spokane County in an April 30, 2020 letter to the Commissioners of Spokane County, Washington.
Mr. Driscoll’s letter contains a legal opinion. The subject of the opinion is the Governor’s purported emergency powers and the question posed by the Commissioners is this:
“What are the governor’s emergency powers during the present COVID-19 pandemic, including enforcement of any orders issued by the governor during that time?”
The April 30
th letter (the opinion) contains one paragraph which is titled SHORT ANSWER and then 5 pages titled ANALYSIS which includes text taken from the State Code.
We respectfully disagree with the substance of the short answer and with the body of analysis for the reasons herein:
Short answer Section:
The opinion begins by making the following statement:
“The Governor derives his power both constitutionally and statutorily.”
This is true but begs the question as to the lawful source and limits of that power. The remaining sentences in this section recite the penalties for disobeying the governor and asserts that the orders of local health officers also must be obeyed so as to avoid fines and punishments. We can find no discussion in the opinion documenting the constitutional source of authority for health officials to make law.
This section begins with the statement that the governor’s power to make law is initially derived from Article X of the Bill of Rights to the United States Constitution commonly known as the Tenth Amendment which states:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”
After citing the Tenth Amendment the opinion concludes, “This basically allows the state, through its executive, to decide state matters.”
This is not an accurate summation of the nature, purpose and effect of the Tenth Amendment. Under the terms of the United States Constitution certain powers are delegated to the national government by the states. In addition, the language of Article I, Section 10, prohibits the states from certain other things, i.e. treaties and coining money.
The Tenth Amendment clarifies that, but for these powers, powers that previously belonged to the states continue to rest with them. At the same time, powers that previously belonged to the people are similarly reserved to them.
The Tenth Amendment, then, is not a grant of plenary power which devolves to the executive of the state. It is simply an acknowledgment that powers, other than those affected by the terms of the Constitution of the United States, remain as status quo ante. That is, whatever powers resided in the state government still exist. In like manner, whatever powers resided in the people still reside there.
This last point is salient because Article I, Section 1 of the Washington State Constitution acknowledges that all governmental authority comes from the people and is authorized by virtue of their consent:
Section 1: All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.
Nothing in the 10th amendment operates, then, to subtract in any way from the authority of the people, or to give the governor of Washington State any power or authority which is not specifically delegated to him by the people under the terms of the Washington State Constitution.
Turning then to the Washington State constitution, the opinion cites Article III, Sections 2 and 5 as follows:
SECTION 2 GOVERNOR, TERM OF OFFICE. The supreme executive power of this state shall be vested in a governor, who shall hold his office for a term of four years, and until his successor is elected and qualified.
SECTION 5 GENERAL DUTIES OF GOVERNOR. The governor may require information in writing from the officers of the state upon any subject relating to the duties of their respective offices, and shall see that the laws are faithfully executed.
The opinion then states:
“This basically allows the governor to enforce state laws, including orders or proclamations he may issue under those laws.”
We respectfully disagree. This is not an accurate statement. Pursuant to article III, Section 2 the governor is not “allowed” but is
required to faithfully execute state laws. But there is nothing in the constitution that authorizes or permits him to make laws or to issue orders or proclamations that pretend to be law.
In fact, all authority to make law is reserved to the legislative branch under Article II, Section 1.
SECTION 1 LEGISLATIVE POWERS, WHERE VESTED. The legislative authority of the state of Washington shall be vested in the legislature, consisting of a senate and house of representatives, which shall be called the legislature of the state of Washington, but the people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature, and also reserve power, at their own option, to approve or reject at the polls any act, item, section, or part of any bill, act, or law passed by the legislature.
Therefore, any proclamation issued by the Governor must be executory in nature (executing existing law) and not legislative (pretending to make law). And since valid executive orders only apply to those who are under the authority of the executive, no executive order is binding on anyone outside the executive branch of government.
The opinion’s reference to Article III, Section 5 above is consistent with the idea that the Governor may impose requirements on those in the executive branch, that is, those already under his authority, but NOT on anyone else. (See Addendum 2 for separate discussion regarding executive orders generally).
Moreover, Article II, Section 18, confirms this point by stating plainly that no laws shall be enacted except by bill (not by order, mandate, directive or edict).
SECTION 18 STYLE OF LAWS. The style of the laws of the state shall be: "Be it enacted by the Legislature of the State of Washington." And no laws shall be enacted except by bill.
Finally, and in any event, no executive order or pretended legislation is lawful which contravenes or violates the God-given constitutionally protected rights of the people as particularly described in Article I, Sections 2,3,4,5 and 11, as well as many other sections of the Washington State Constitution:
SECTION 2 SUPREME LAW OF THE LAND. The Constitution of the United States is the supreme law of the land.
SECTION 3 PERSONAL RIGHTS. No person shall be deprived of life, liberty, or property, without due process of law.
SECTION 4 RIGHT OF PETITION AND ASSEMBLAGE. The right of petition and of the people peaceably to assemble for the common good shall never be abridged.
SECTION 5 FREEDOM OF SPEECH. Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.
SECTION 11 RELIGIOUS FREEDOM. Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion…
The dangerous situation in which we find ourselves was contemplated and provided for by the Founders and the necessity for civil officials to exercise fidelity to the rule of law has been rearticulated by courts throughout the American political experience.
For example, in Federalist 51, Madison observed that when one level or branch of government gets out of its lane, another level and/or branch will interpose itself to defend the people from tyranny.
"Hence, a double security arises to the rights of the people. The different governments will control each other at the same time that each will be controlled by itself. (Federalist 51, at 323)"
More recently, Justice Scalia observed:
"But the Constitution protects us from our own best intentions. It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate powerin one location as an expedient solution to the crisis of the day.”
For these reasons we believe that the analysis in the opinion should be revisited and reconsidered. The circumstances of the “current crisis” can never be used to justify lawlessness, either on the part of individuals or government officials or institutions.
Michael Anthony Peroutka, Attorney at Law
Co-Founder, Institute on the Constitution
151 Longfellow Drive, Millersville, MD 21108