On March 19th, Governor Doug Burgum signed Executive Order 2020-6. It’s one of many orders the state’s top executive has signed in response to the COVID-19 outbreak. What was unique about this one is that it placed certain restrictions on some businesses while closing others.
That Executive Order was later amended to include salons, tattoo parlors, and massage facilities. Originally, it was set to expire on April 6th. The order was then extended to April 20th and finally to April 30th, before affected businesses were allowed to open May 1st— with restrictions.
While Burgum and others point to the fact that these closures made up a small percentage of the overall businesses in North Dakota, I’m not sure that brought much comfort to those affected by them. I think there’s an argument to be made that Governor Burgum was doing more harm than good with the written decrees.
On the very day the original order was set to expire, there were calls from some for a stay-at-home order to be issued by Burgum. I made the case against it. My legal argument against the idea stemmed from the State Constitution’s Declaration of Rights (Article I).
For example, Section 7 specifically states:
“Every citizen of this state shall be free to obtain employment wherever possible, and any person, corporation, or agent thereof, maliciously interfering or hindering in any way, any citizen from obtaining or enjoying employment already obtained, from any other corporation or person, shall be deemed guilty of a misdemeanor.” (Emphasis Added)
Section 20 then says:
“To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.” (Emphasis Added)
In other words, Governor Burgum doesn’t have the authority to close businesses. In fact, he’s constitutionally prohibited from doing so.
Apparently we’re not the only ones who feel Burgum went too far. Yesterday, reports show that Legislative Council released a memo raising their own questions about the governor overstepping his authority. According to the AP’s James MacPherson:
“The memo released Tuesday afternoon by the nonpartisan Legislative Council raises the question of whether health officials and occupational licensing boards should have placed the restrictions, and not the governor.”
While Legislative Council “stopped short of issuing a declarative statement on whether the protocol was proper,” Speaker of the House Lawrence Klemin (R – District 47) acknowledged that any legal challenges, as a result of the orders, would most likely cite their memo. He went on to express his opinion that:
“Overall, the governor, his staff and the agencies are doing a good job but there are some constitutional issues that have been raised.”
There’s no question in my mind that what Governor Burgum did was unconstitutional. But let’s be honest. The circumstances are in his favor. Why? It’s really quite simple— How many people want to get into a legal battle with the Governor of North Dakota? I’m guessing not many.
Prior to the Legislative Council memo being released, an assisted living facility out of Minot filed a lawsuit against the governor and the state Health Department. We’ll see if others follow.
It’s troubling that, at this point, there’s been no check on the power Governor Burgum is wielding. If people are unable to challenge these things through the courts, that leaves the Legislative Branch. But they’re not in session and the Speaker of the House has already said “he doesn’t think the GOP-led Legislature wants a legal fight with the governor”.
Like it or not, at some point, the governor’s authority has to be challenged. Unchecked power should not be tolerated. I don’t care how benevolent the person wielding it is thought to be.
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