Governor's proclamation unconstitutional
Last updated 4/29/2020 at 9:06am
Since Governor Inslee issued his “Stay Home, Stay Healthy” Proclamation last month, Lincoln County has been scrambling trying to determine how to best balance our paramount duties to provide for Public Safety, Public Health and County Road functions. While we all want to stay safe and avoid viruses, we want to do so in a manner that is the “least restrictive” to our constitutionally protected rights. While the Governor’s Proclamation is aimed at protecting the public, I believe it does so in a way that, in most aspects, is the “most restrictive” to our rights.
The term “least restrictive” comes from a standard of judicial review, or test, called “Strict Scrutiny” that the courts use, that would result in a law being deemed unconstitutional if the government failed to meet the three elements of the test.
The first element is, “Is the law a compelling state interest?” One could assume that, yes, there is a compelling state interest in the event of a pandemic. The government should use its limited authority to do what it can to keep its citizens safe.
The second element is, “Is this law “narrowly tailored” to achieve the compelling purpose? So we have a pandemic, and the governor, using the Emergency Powers granted to him by the people of this state, issues his “Stay Home, Stay Healthy” order or temporary “law,” if you will. This new “law” must be “narrowly tailored” to achieve the purpose of keeping us safe from the “compelling state interest” or pandemic, to be constitutional.
The third element, uses the “least restrictive means” to achieve the purpose. Purpose being, keeping us safe from a virus in the midst of a pandemic. Is the Governor’s Proclamation or “law” (which I believe satisfies the first element of “is it a compelling state interest?”) “narrowly tailored,” and does it use the “least restrictive means” to keep us safe?
I personally think it’s laughable to even ask those last two questions. Additionally, did the Governor consider the Bill of Rights when proclaiming his “law”? Did the Governor consider the 14th Amendment to the US Constitution that protects us from being deprived of “Life, Liberty or Property” when proclaiming his “law”? Why can “government” construction take place, but you can’t build a pole building in rural Lincoln County? Why can you go to the dollar store but can’t get a haircut? Why can’t gun shops be open, but you can buy one at Walmart?
This “law” deprives citizens of their rights enumerated in the first ten amendments to the US Constitution. The “Pick & Choose” style that has been applied in this law sets a dangerous precedent and is devastating peoples’ lives and our economy.
Lincoln County, as well as most counties, have written the governor pleading with him to use the “least restrictive” means to keep us safe. i.e., allow residential construction (as deemed essential by the federal government and most other states) to resume with some common sense safety precautions in place. So far, those efforts have failed. (As of April 24th, the governor has so graciously allowed “low risk” construction to continue.) Some counties have defied the governor’s order and allowed construction already underway to continue. Those counties have been threatened legally and have been demanded to rescind their actions, interestingly not by the attorney general, but the governor’s legal advisor, who in my estimation has no authority to challenge the legality of a duly elected board of county commissioners’ actions. There are also counties that have been told by their insurance pools that there is no coverage, personally or otherwise, if actions are taken by the county inconsistent with the governor’s order.
Some “Emergency Powers” granted to the governor by the people are only valid for 30 days unless extended by the Legislature or by written consent of the “4 corners” — the minority and majority leaders of the House and Senate. Those orders requiring an extension are only for such things as waiving interest or due dates on taxes, waiving waiting periods for unemployment, and procedures for conducting the state’s business.
The broader “Stay Home, Stay Healthy” order was issued under a different section of the same statute. This statue should give us all pause. You owe it to yourselves to look it up and read it. RCW 43.06.220 (1) (h.). We the people of this state, by and through our elected state representatives, have given our governor nearly absolute authority to proclaim a state of emergency and effectively curtail virtually any activity that “he reasonably believes should be prohibited to help preserve and maintain life, health, property or the public peace.” With no time limit. (It was only during the last session that the legislature removed the provision in this statute allowing the governor to prohibit you from possessing a firearm during an emergency, except for in your home or place of business.) Thank God!
That being said, the US Constitution is still the supreme law of the land. And for an order from a governor or a “law” to be constitutional, it still has to pass the “Strict Scrutiny” test. Unfortunately, the “law” would have to be challenged in court which could take years. By that time, the crisis will be over, and we will be left with more of our inalienable rights alienated.
It’s time to wake up, people! November is coming and yes your vote matters! 916,000 registered voters in this state DID NOT VOTE in the last gubernatorial election. Gov. Inslee won by 284,000 votes. Do the math, the votes are there.
In the meanwhile, the governor demands that you respect his authority and labels those of you who do not as insubordinate. He has not missed an opportunity to politicize this pandemic and is doing little more than creating an even bigger disaster in the coming economic crisis. Common sense needs to be inserted into these decisions that affect our livelihood.
If “We the People” continue to allow our elected officials, who have taken an oath to protect and defend the US and State Constitutions, to trample all over our inalienable rights, then what was the point of all of our military personnel fighting and dying to defend our liberty and freedom?
It is NEVER “ok” to suspend the Constitution for ANY reason, and the Constitution DOES NOT provide for ANY infringement of ANY right, not even in an emergency.