Arizona's COVID Shutdowns Threaten Constitutional Principles | Opinion

Fundamental to republican government is the separation of powers: the legislature makes law, the executive executes law and courts adjudicate disputes under law. But during the coronavirus pandemic, the American people have been liable to be governed without law. Many states have let their governors rule unchecked for months on end pursuant to broad delegations of "emergency" power.

Recently the Michigan Supreme Court rebuffed Governor Gretchen Whitmer's reliance on an old emergency statute, which it struck down as violating the non-delegation doctrine—the principle that the legislature cannot give away its legislative powers to the executive. But governors in many states continue to rule in violation of this fundamental constitutional principle.

That includes my own state of Arizona, where the governor, a Republican, has singled out gyms and a subset of bars for onerous closures and restrictions without legislative approval, notwithstanding several months of decline in infections and more than two months of "minimal" hospitalizations for COVID-like illnesses.

The governor relies on a statute that purports to delegate to him "all police power vested in the state" in the event of an "emergency," which is defined to include pandemics. The problem is, there are no standards by which to judge when the "emergency" is over. At a judicial hearing last week at which I represented 130 bar owners suffering under severe restrictions, our state's health director could not say the emergency would ever be over unless there were a vaccine, herd immunity or major advances in therapeutics—which may never come.

Arizona flag
The Arizona state flag flies beside the United States flag at the Visitor Center at Canyon de Chelly National Monument near Chinle, Arizona. Robert Alexander/Getty

Perhaps the governor would have been justified in closing businesses in March, when we did not know what the pandemic would bring. That is no different than declaring an emergency because of an impending hurricane. But the hurricane came and went. What the governor has now done is akin to declaring an emergency because he anticipates a bad hurricane season. That he cannot do. He has repeatedly stated that the current conditions are the "new normal." If that's so, then he should call the legislature into session. It is up to them to make laws under "normal" conditions, including when a new virus has become a part of everyday life.

Worse is the way our governor has exercised his unfettered power. A clause of our state constitution, which also expresses a fundamental constitutional principle, provides that the government cannot grant privileges or immunities to a special few, but must treat all alike without arbitrary discrimination. Yet our governor's orders have singled out a subset of Arizona bars with a particular series of liquor license. The director of the state's department of liquor, however, acknowledged that four other series of licensees, including those associated with breweries, hotel bars, restaurant bars and private clubs, often act "like" the bars that were targeted. But those establishments never had to close and do not operate under the same restrictions. Unsurprisingly, the governor's actions have merely funneled customers from the closed or restricted bars to their competitors.

Finally, another fundamental principle of our legal order is that every member of a class should be able to conform to the same reasonable regulations. But the regulations under which bars are allowed to open contain blanket prohibitions on activities like parlor games and karaoke, while our department of health services grants "special dispensation" to some businesses, like larger pool halls, on a case-by-case basis. In such a system, it is often the well-connected who more easily get permission.

The lesson from Arizona is that checks and balances and the legislative process are essential to preserving liberty and avoiding arbitrary rule no matter who is in power. It is time—in Arizona and elsewhere—to bring the legislatures back to the table.

Ilan Wurman is an associate professor of law at the Sandra Day O'Connor College of Law at Arizona State University, where he teaches administrative law and constitutional law. He is the author of A Debt Against the Living: An Introduction to Originalism (Cambridge 2017) and The Second Founding: An Introduction to the Fourteenth Amendment (Cambridge 2020).

The views expressed in this article are the writer's own.