Saturday, June 13, 2020

Oregon Supreme Court Rules Governor Has Few Limitations in Issuing Laws During an Emergency

The Oregon Supreme Court ruled that Governor Brown has full police authority for her emergency orders.
"As discussed in greater detail below, 366 Or at 527-31, the declaration of a state of emergency pursuant to ORS 401.165 gives the Governor the authority to exercise certain powers and to take certain actions. The powers include, but are not limited to, “all police powers vested in the state by the Oregon Constitution in order to effectuate the purposes of [chapter 401].” ORS 401.168(1); see also ORS 401.168 to 401.198 (setting out additional powers)." p. 513 [emphasis added]
Page 524 of the opinion further describes the state's police power as all power the state possesses "within constitutional limitations".
The term “police power” refers to “the whole sum of inherent sovereign power which the state possesses, and, within constitutional limitations, may exercise for the promotion of the order, safety, health, morals, and general welfare of the public.” Union Fishermen’s Co. v. Shoemaker, 98 Or 659, 674, 193 P 476 (1920).
On page 525-526,  the court lists the limitations. Some are statutory (have to do with the declared emergency, only exercised during the declared emergency, and can be terminated by joint resolution of the Legislative Assembly).  The others are limitations imposed by the state and federal constitutions.

The court also said that emergency powers under ORS 401 may make use of the powers of ORS 403:
"The statutes in ORS chapter 433 regarding public health emergencies were enacted to give the Governor an additional tool with which to respond to public health emergencies. They were not intended to prevent the Governor from declaring a state of emergency under chapter 401. That is clear from a statute in chapter 433 itself: ORS 433.441(4), which provides that '[n]othing in ORS 433.441 to 433.452 limits the authority of the Governor to declare a state of emergency under ORS 401.165.' In addition, the powers granted by ORS 433.441 to 433.452 are not powers that may be used only during a public health emergency declared under ORS 433.441(1). ORS 433.441(4) expressly provides that the same powers may be used during a state of emergency declared under ORS 401.165: 'If a state of emergency is declared as authorized under ORS 401.165, the Governor may implement any action authorized by ORS 433.441 to 433.452.'” Page 529
But, apparently the court deems that the limitations included in ORS 433 do not apply when the powers given in ORS 433 are used under ORS 401.
"Declaring a state of emergency under chapter 401 gives the Governor greater authority: it enables the Governor to take all the actions authorized by the emergency provisions in both chapters 401 and 433. By contrast, if the Governor declares a public health emergency under ORS 433.441, the Governor’s emergency powers are more limited." Page 529
That raises the question of why the more limited power of ORS 433 required strict time limits whereas the broader power of ORS 401 has none. Circuit Court Judge Shirtcliffe reasoned it was because the power to restrict "the rights of citizens to assemble and operate their business became significantly curtailed" and was severe enough to need a statutory limitation.
"ORS 401.165 and ORS 433.441 are in conflict over the length of time the Governor’s orders last. ORS 433.441, enacted in 2007, is the more specific statute and relates directly to public health emergencies. It is the more specific statute pertaining to the restriction of citizens in the Governor’s executive orders and also carries restrictions in time that the legislature saw fit to impose. Once the Governor began utilizing the specific provisions of ORS 433.441(3)(d) in Executive Order 20-12, the rights of citizens to assemble and operate their business became significantly curtailed, thereby ensuring the need for further justification and the statutory limitations in time which create a check on this additional power of the Governor. Although ORS 433.441(4) indicates that nothing in ORS 433.441 to 433.452 limits the authority of the Governor to declare a state of emergency under ORS 401.165, it also does not suspend the time limitations of section (5)." Pages 4-5
That there was a reason for the statutory limitation in ORS 433 ("a result of the passage of House Bill (HB) 2251") is not addressed in the Oregon Supreme Court's opinion except to say that it made ORS 433 "more limited in scope".
"Thus, the emergency provisions set out in HB 2251 were intended to give the Governor an additional option for responding to an impending public health crisis, particularly one that is more limited in scope. Accordingly, HB 2251 included a durational limit on the proclamation of a state of impending public health crisis. It provided that such a proclamation “expires when terminated by a declaration of the Governor or no more than 14 days after the date it is proclaimed unless the proclamation is expressly extended for an additional 14-day period.” HB 2251 § 1(4)." Page 533
Thus, governors would be more likely to use it than the broader ORS 401 powers.
"To summarize: The legislature enacted the original ORS chapter 433 emergency statutes in 2003 to give the Governor “an additional tool” to respond to public health emergencies. Those statutes enable the Governor to exercise certain emergency powers as an alternative to declaring a “full blown” state of emergency under ORS chapter 401." Page 536
Though the court has lots of information on why various parts of the bill were passed (pages 531-535), they give no information on why the 14 day limitation expandable to 28 days was put in the law other than to clearly give actions taken under it a "temporary" nature. Surely, someone mentioned why. And ORS 401 also assumes a temporary nature (all actions are required to address the stated emergency).

Basically, the Oregon State Supreme Court is saying that an Oregon governor can do anything by declaring a state of emergency except what is explicitly forbidden by the state and federal constitutions. The only check is a joint resolution of the Legislative Assembly which is a very weak stop if a state is basically run by one party. It offers the thinnest of protections for minorities not in favor whose actions or mere presence may be declared the basis of an emergency. The court and we may live to regret their decision.


MAX Redline said...

Single-party rule. Isn't it wonderful?

As usual, you've put together an excellent briefing.

Unknown said...

Thanks, Max! Already one Republican legislator apparently said there was no reason for Gov. Brown to call an emergency session not about the budget because the State Supreme Court said she can do whatever she wants. From the Oregonian (

"Brown said she also wants lawmakers to pass into law 'several pandemic-related policies that I have implemented via executive order, including the temporary eviction moratorium and protecting CARES Act payments from garnishment ...'”
. . .

"Senate Republican Leader Fred Girod of Stayton did not share his Democratic colleagues’ enthusiasm for Brown’s special session plans.

“'I fail to understand why the governor is calling the Legislature in for a special session, an expensive undertaking for taxpayers, in the middle of a pandemic, when it is not intended to address the state budget deficit,' Girod said. 'The intent of this special session should be to balance the state budget, which is the fundamental job of the Legislature, and provide relief to Oregonians suffering from the ongoing COVID-19 economic disaster. Instead, the Governor is prioritizing policy bills.'

"Girod pointed out the Oregon Supreme Court recently upheld Brown’s coronavirus executive orders, meaning she does not need lawmakers to vote to keep them in effect; he did not mention police accountability legislation."