Lawmakers Sue Claiming Inslee’s Orders Are Unconstitutional
Posted May 19, 2020
By Washington State Business & Real Estate Lawyer Nicholas L. Jenkins
Countless private individuals and small and medium-sized business leaders are querying the legal basis of Washington Governor Inslee’s Emergency Orders now that epidemiological experts agree we have “flattened the curve.” The suspicion over partisan political motives has increased exponentially with the Washington Department of Health (DoH) data showing this particular coronavirus, a severe acute respiratory syndrome (SARS) flu, has caused 1,000 deaths in Washington State, i.e., 0.01 percent of the Washington population of 7,615,000. Inslee’s critics further reference Washington DoH data showing the 2009 H1N1 influenza “novel” virus caused 1,650 deaths in Washington and was controlled without “stay at home” edicts and destruction of the state economy.
Such concerns are shared across the country. Last week, North Carolina federal judge James C. Dever III blocked the enforcement of restrictions the Governor ordered on indoor religious services. Also last week, the Wisconsin Supreme Court struck down the Governor’s stay-at-home order ruling he overstepped his legal authority when he extended the order for another month without consulting legislators. On May 18, an Oregon state court judge ruled the Governors emergency orders are “null and void.” The reasoning common to all such rulings is the principal that voters have a say in such matters, and their legislators need to approve of a plan if the aim is to quarantine entire state populations.
In Washington, Inslee seemingly anticipated a legislative check on his “stay at home” power, just before this most recent SARS outbreak from China. In May 2019, he signed Senate Bill 5260 that added broad executive powers to preclude, among other things, “assembling or gathering” in an “emergency.” Under the new law, legislative approval is required only for executive edicts “concerning waiver or suspension of statutory obligations.” Thus, for example, the State’s prohibition on its own “liability for participation in interlocal agreements” is limited to “thirty days unless extended by the legislature.”
There are several suits now pending in federal court challenging Inslee’s authority to order the lock down in the first instance and continue it indefinitely without legislative oversight. One case is MacEwen et al v. Inslee, filed by four Washington legislators. One of the complaint’s authors is Gonzaga University law professor David DeWolf, creator of the popular Washington Practice “tort” series commonly used by lawyers as research reference. The complaint reviews in detail the medical-scientific basis for Inslee’s diktats and notes the obvious problem, i.e., that “[i]f the death rate in 2020 is roughly identical to past years, then any year is an emergency.” The legislators argue, among other things, that Inslee’s orders “infringe the First Amendment right to free exercise of religion,” and his work prohibitions “deprive the Plaintiffs of property without due process of law.”
The McEwen case was filed on May 5. The Governor’s office remains silent on the cost benefit analysis. Such analyses are standard for any State policy. They would logically compare the risks of this particular SARS outbreak to the benefits of an all-population, statewide quarantine to mitigate a de minimis death rate caused by a hazard principally localized to King County.
The Governors critics are pleading with dissatisfied voters to take action in November in a variety of ways, including replacing the Governor, requiring the State to define what is considered an “emergency,” and requiring legislative review of a Governor’s “emergency” edicts extending beyond thirty days. In the meantime, those that need to protect themselves from unemployment claim fraud and identity theft, the free assembly restrictions, domestic abuse, business destruction and work preclusions will need to ignore Inslee’s orders and challenge them in the courts.
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