[RD] When is an order not an order?

[Zkribbler]

Gov Newsom has just issued a mandatory order that all Californians remain at home.

The nation's most populous state is ordering its nearly 40 million residents to stay home to prevent the spread of the coronavirus. California Gov. Gavin Newsom's order marks the first statewide mandatory restrictions issued in the United States to help combat the outbreak. It goes into effect Thursday at midnight

https://edition.cnn.com/2020/03/19/us/california-coronavirus-stay-home-order/index.html

There's two problems. First, no provision in the Constitution allow him to issue such an order.

Second

The order will not be enforced by law enforcement, he added.

An "order" which is not enforceable is a "suggestion."

 

[Zardnaar]

Using the old appeal to authority thing.

Without authority though it's hoping in rank of office.

Not sure what the law is here but apparently what they're doing is legalno ones argued afaik. Probably some law left over from the 30s or 40.

 

[Timsup2nothin]

The question is not "does the constitution have a provision that allows such an order?" The question is "does the constitution specifically preclude the passage of any law allowing such an order?" I don't think that it does, although I have already been contemplating a challenge in another similar issue.

In Ohio there is a state law creating the position of the 'State Health Officer.' Under that law said health officer is empowered to order that polling places be shut down, which if he were to order it in November would conflict with the constitution unless by then Ohio has enacted some legal way to hold an election as required by the constitution without using polling places. Whether just the creation of such an office in itself is unconstitutional, or whether it only becomes unconstitutional if he should wield his power in such a way is an open question.

In the case of California though, the governor holds wide ranging powers in the event of an emergency, and unless you can show something in the constitution that reads something like "the state shall not pass any law restricting the freedom of movement of the citizenry" I think he can do what he did. Now, you might challenge on freedom of assembly, since obviously confining people to their homes impedes that. You might stretch confinement to their homes as "incarceration without due process," maybe. No matter how you approach it though you are going to run afoul of precedents set in quarantines for the public health cases, and I suspect those will tilt in the governor's favor.

 

[amadeus]

An order is an order when it needs to be and when it doesn’t it isn’t.

This and most countries decided collectively long ago that emergencies override ordinary constitutional protections. Some, like Lincoln’s suspension of habeas corpus can be argued to be necessary, and others, like the internment of ethnic Japanese on the west coast during WWII more frivolous and motivated by some ulterior motive.

I think it seems like most people are collectively on the same page about this whole thing so the legal aspects will probably be taken care of later on, and probably usually in the governments’ favor.

 

[Bugfatty300]

I think it's question of whether law enforcement can even enforce these orders at all.

I mean what could they realistically do? Pack tens of thousands of violators in already overcrowded understaffed jails? Set up temporary internment camps that's going to suck up vital state resources? Maybe issue tickets to offenders to deal with them later?

 

[Timsup2nothin]

I think it's question of whether law enforcement can even enforce these orders at all.

I mean what could they realistically do? Pack tens of thousands of violators in already overcrowded understaffed jails? Set up temporary internment camps that's going to suck up vital state resources? Maybe issue tickets to offenders to deal with them later?

Ding ding ding! Got it in three. And since there are any number of valid reasons to be out and about but being out and about is automatically probable cause for a stop you are putting yourself strictly at the mercy of whether or not you got game enough when you get pulled up.

 

[Bugfatty300]

Either way there has to be a hard reckoning after all this. From people flagrantly ignoring public health measures all the way up to the scattering insider trading cockroaches.

 

[Farm Boy]

State institutions will abide by such orders. State universities in Illinois just (began) emptied(ing) thier dormitories on a similar order. I assume trapped international students are an exception.

 

[Zkribbler]

The question is not "does the constitution have a provision that allows such an order?" The question is "does the constitution specifically preclude the passage of any law allowing such an order?" .

Nope Art V says

The supreme executive power of this State is vested in the Governor. The Governor shall see that the law is faithfully executed.

You're probably thinking of Art. IV:

SEC. 1.The legislative power of this State is vested in the California Legislature which consists of the Senate and Assembly, but the people reserve to themselves the powers of initiative and referendum.

In short, the Governor may order about members of the Executive branch, bit it is the Legislature which passes the laws to govern the citizenry.

 

[Timsup2nothin]

Nope Art V says

You're probably thinking of Art. IV:

In short, the Governor may order about members of the Executive branch, bit it is the Legislature which passes the laws to govern the citizenry.

The office of the "State Health Officer" is created by legislation, and the 'powers' of the office are granted by legislation. Again, this refers directly to the Ohio case, not California, but I'm guessing there's some sort of legislation delineating the governor's authority.

 

[Zkribbler]

s created by legislation, and the 'powers' of the office are granted by legislation. Again, this refers directly to the Ohio case, not California, but I'm guessing there's some sort of legislation delineating the governor's authority.

The office of the State Health Officer, if any. issue no such Order. It came from the Governor.
My argument is he has no such authority.

 

[Timsup2nothin]

The office of the State Health Officer, if any. issue no such Order. It came from the Governor.
My argument is he has no such authority.

As I said, I've been looking at Ohio, where an even more likely to be unconstitutional order went out in direct defiance of the courts, and the order given was definitely within the powers granted by the legislature. I've been a little lazy here, but I'll now go look for something along the lines of an "emergency authority act" in California codes. I'm betting that in such an act there are clear statements authorizing an order like this one to be given. Conversely, there doesn't appear to be any direct constitutional restraint telling the legislature that they cannot grant such an authority. Back in a while.

EDIT: California code Title 2: Division 1: Chapter 7-The California Emergency Services Act
Article 3-Powers of the Governor
8567(a) The Governor may make, amend, and rescind orders and regulations necessary to carry out the provisions of this chapter. The orders and regulations shall have the force and effect of law. Due consideration shall be given to the plans of the federal government in preparing the orders and regulations. The Governor shall cause widespread publicity and notice to be given to all such orders and regulations, or amendments or rescissions thereof.

Basically, in an act that was lawfully enacted by the legislature, they give the Governor in time of declared emergency the authority to rewrite the law as he sees fit. That may or may not be brilliant legislation, but it is legislative authority.

 

[Farm Boy]

We're to the point where we recognize The Court can tell the governor not to do something, but they have to rely on The People to listen to it, or, namely, The People the Governor tells to enforce the law.

Edit:

I mean, there's a dilemma in this equation. In order for a plan to stand up to the test of time it has to be something that somebody like El Mac would find at least sensible. But in order for something to pass emergency muster it has to be something that the ants* will buy. A lot of them are in grave danger of not making it to stand for historical judgement, but they're what history will have to judge.

*double bonus points for that not being a moral pejorative. I think.

 

[Zelig]

And since there are any number of valid reasons to be out and about

I'm hiking to the Costco three hours away from my house because I was laid off and can't afford to drive to the cheapest source of food, but do have a lot of free time.

 

[Timsup2nothin]

We're to the point where we recognize The Court can tell the governor not to do something, but they have to rely on The People to listen to it, or, namely, The People the Governor tells to enforce the law.

Edit:

I mean, there's a dilemma in this equation. In order for a plan to stand up to the test of time it has to be something that somebody like El Mac would find at least sensible. But in order for something to pass emergency muster it has to be something that the ants* will buy. A lot of them are in grave danger of not making it to stand for historical judgement, but they're what history will have to judge.

*double bonus points for that not being a moral pejorative. I think.

Well, in this case I don't know that the court would have any grounds to get in the governor's way. He does have legislative authority to issue the order, he did apparently issue it in the manner the act required (trust me, there was 'widespread publicity and notice'), and I can't find anything that specifically says "the state shall make no law requiring people to stay in their homes" so no constitutional challenge seems available.

The Ohio case was challenged, and the court ruled, based in the idea that the election could not be delayed by the governor because it would put too much time between the early voting that had already happened and the physical voting which was at that point like three days away. The governor end ran the courts by accepting that he couldn't postpone the election, but his state health officer had and used the authority to close all the polling stations. Obviously with no polling stations there is no election, but the conflict is legally avoided. The question it leaves is whether the Ohio legislature could grant that authority, since it empowers the state health officer to (indirectly) interfere with elections that are mandated by the constitution. He didn't yet, since it was just a primary, but it is pretty clear that he could.

 

[Farm Boy]

There is always some leeway for government authorities that are willing to bear punishment for their actions. I guess. Like that lady that refused to marry gays for a time. They are positions of public trust even if they don't command it, often enough.

 

[Timsup2nothin]

There is always some leeway for government authorities that are willing to bear punishment for their actions. I guess. Like that lady that refused to marry gays for a time. They are positions of public trust even if they don't command it, often enough.

I don't really think he can be punished. His actions; closing public spaces to access, was well within his authority. In fact he could very easily claim that not closing polling stations when he was closing everything else would have been a violation of equal protection. There needs to be corrective action, for sure, but punishing the state health officer for doing the job he was appointed to do within the parameters of the authority he was given to do it isn't part of that. The legislation that lays out his authority needs to be updated, before November, to specify that he can't interfere with a constitutionally mandated election, or the state needs to adopt procedures for conducting elections without access to polling places. I expect the former but would prefer the latter.

 

[Farm Boy]

Electronic voting. Heh. And we thought we had security issues last time. Everything's gonna be getting viruses like 2001 kazaa.

 

[amadeus]

Let’s hear an idea out before we poo-poo it. Voting by mail is already possible in many places.

I have my doubts about electronic elections but I’m not going to dismiss it entirely until we get the full picture.

 

[hobbsyoyo]

Voting by mail is already possible in many places.

I hope it becomes universal in the US thanks to this but I suspect every state controlled by the GOP will not implement this while the blue states do.