UPDATE: Legal services became a little less essential with Exec. Order 20-18 effective April 7, 2020 and declaring that “face-to-face encounters” with clients should be postponed absent an adverse impact on the client’s financial or legal position.
As the coronavirus threat intensifies it seems that governors everywhere are issuing “emergency” executive orders in response. Schools, hotels, taverns, dine-in restaurants, sports venues, and casinos are among the locations closed by gubernatorial order. The next milestone in the wielding of executive power is the “stay-at-home” order which, subject to its several exceptions, is a quarantine of all of us, sick or not.
When I am told that I must do something that I am not otherwise inclined to do because the law requires it, I do some research. When I am told that I cannot do something that I might consider doing because the law forbids it, I do some research. Remarkably often I find that the claim of a legal mandate or legal prohibition is not supported by law. While, for instance, I am indifferent to cauliflower, the declaration of some bureaucrat that I am not allowed to eat cauliflower would simultaneously prick my libertarian reflexes and my inclination toward legal research.
But these are different times. If there is some evidence that cauliflower is the unwitting host of pestilence, then I will comply with a government order to cease the consumption of cauliflower. Still, I would do so out of self-concern and individual responsibility before considering the legality of the legal coercion.
So what are the powers of the Indiana governor? Starting with the basics, I located Article 5 of the Indiana Constitution. Section 1 thereof vests “the executive power of the State” in its governor. The remainder of Article 5 reveals little about the particulars of those executive powers. For instance, Section 12 establishes the governor as “commander-in-chief of the armed forces” with the power to put down insurrection or to repel invasion. Section 14 grants the governor a veto power¹ over bills from the General Assembly. Section 15 empowers the governor to require written reports from officers of the “administrative department.”² The governor has Section 17 powers of pardon and sentence commutation. The governor has Section 18 powers of appointment to fill vacancies, including judicial vacancies. Section 20 of Article 5 empowers the governor to convene the General Assembly elsewhere should the “seat of government” become dangerous from “disease or common enemy.” Notably, Article 5 anticipates a shutdown of the capitol by reason of disease but grants to the governor only an emergency power to convene the General Assembly elsewhere. If the Indiana governor has broad emergency powers to limit movement and other human activity during a period of contagion, such powers must reside outside the Indiana Constitution.
According to Article 4 Section 16 of the Indiana Constitution there are legislative powers more broad than executive powers. Each house of the General Assembly has “all powers necessary” for the Legislative Department of a “free and independent State.” If the General Assembly has delegated some of that boundless authority to the governor, then there must be a statute. It was in the “Corona Calumet” Featured Article posted March 12, 2020 that I wrote of IC 16-41-9-1.5, by way of which the General Assembly authorized a “public health authority” (State or local) to intervene respecting the quarantine or isolation of the contagious or the probably contagious. No statute was found granting such powers to the governor.
Apart from the isolation/quarantine provisions of IC 16-41-9-1.5, the Indiana State Department of Health (ISDH) has substantial emergency powers under IC 16-19-3. By the way, the ISDH was created by legislation. See IC 16-19-3-1 to 3. While the governor appoints members of the Executive Board and while those appointees may be removed by the governor for cause, that body is otherwise independent of the governor. The governor has neither vote nor veto in matters before the Executive Board of the ISDH.
At IC 16-19-3-9 is a general provision that the ISDH “may establish quarantine and may do what is reasonable and necessary for the prevention and suppression of disease.” The power to close schools (and churches) is granted to the ISDH under IC 16-19-3-10. These powers from legislative grant belong to the ISDH and not to the governor.
As this Article was being written there came notice of the governor’s Executive Order No. 20-08 directing most of us³ to “stay at home.” In the 10 pages of this Executive Order of March 23, 2020 what legal authority did the governor cite?
To his credit, the governor claimed no constitutional authority for his state-wide “stay-at-home” order. The governor claimed statutory authority as follows on page one of the Executive Order:
WHEREAS, as Governor, I have broad authority and powers under Indiana law to declare and respond to public health emergencies on behalf of our State, including, but not limited to: (a) making, amending, and rescinding the necessary orders, rules, and regulations to carry out Indiana’s Emergency Management & Disaster Law and its purposes, Ind. Code ch. 10-14-3 (the “Emergency Disaster Law”); (b) employing any measure and giving any direction to the ISDH or local boards of health as is reasonably necessary for securing compliance with the Emergency Disaster Law or with the findings or recommendations of the ISDH or local boards of health because of conditions arising from the actual or threatened emergency; and (c) controlling ingress to and egress from a disaster area (here, the entire State of Indiana), the movement of persons within said area, and the occupancy of premises in said area;
WHEREAS, the ISDH, which reports to me as the Governor, also has broad legal authority and powers in connection with public health emergencies (Ind. Code ch. 16-19-3), including, for example, the powers to do what is reasonable and necessary for the prevention and suppression of disease, to forbid public gatherings when necessary to prevent and stop epidemics, to bring actions in the courts for the enforcement of health laws, and all powers necessary to fulfill the duties prescribed by law.
So let’s “fact check” the governor’s claim of broad legal authority, starting with IC 10-14-3 pertaining to emergency management. There is even a State Emergency Management Agency created under IC 10-14-1-2.
“Disaster” is defined at IC 10-14-3-1 including (as amended) 30 different sources of causation, among which one finds “epidemic” and “public health emergency.” “Emergency Management” is defined at IC 10-14-3-2 with a listing of 15 nonexclusive “functions” but without mention of a state-wide stay-at-home order.
At IC 10-14-3-11 the governor is assigned “duties” with the apparent powers to carry them out. The governor is granted “general direction and control” over the Emergency Management Agency and “is responsible for carrying out this chapter.” The chapter of mention is IC 10-14-3. If the Emergency Management Agency has authority under Chapter 3 to declare a state-wide stay-at-home order then so does the governor. The Section 11 power coming closest to a description of the governor’s state-wide stay-at-home Order is § 11(b)(2)(D), to-wit:
(D) Conducting civilians and the movement and cessation of movement of pedestrians and vehicular traffic during, before, and after drills, actual emergencies, or other disasters.
The position of the CLB is that the cited Section 11 gubernatorial power pertains to the evacuation of people from a designated disaster zone or (alternately) the quarantine (“cessation of movement”) of people within an area of contagion. The quoted power does not authorize a state-wide stay-at-home Order.
“Emergency gubernatorial powers” is part of the title of IC 10-14-3-12. The governor may declare a disaster emergency. The declaration of a disaster emergency lasts no longer than 30 days unless “renewed” by the governor. The General Assembly may terminate a state of disaster emergency. There are 11 subsections of gubernatorial powers at IC 10-14-3-12(d). The most relevant of these is section 12(d)(7) quoted by the governor in Executive Order 20-08:
(7) Control ingress to and egress from a disaster area, the movement of persons within the area and the occupancy of premises in the area.
By declaring the entire state a “disaster area” the governor claims authority to control the movements of everyone within the borders. This is more than a stretch. Given that freedom of movement is a fundamental right, statutes purporting to authorize curtailment of that right should be narrowly construed and should survive constitutional scrutiny only for compelling cause. No neutral or narrow construction of subsection (d)(7) leads to authorization of a state-wide stay-at-home Order. For the “fundamental right” status of the freedom of movement, see Youngberg v. Romeo, 457 U.S. 307, 313 (1982). For the rule of strict or narrow construction of a statute when a fundamental right is at stake see Ind. Dept. of Environmental Mgmt. v. Chemical Waste Mgmt., 643 N.E.2d 331, 337 (Ind. 1994).
So where does the analysis leave us? Remarkably, the governor did not expressly declare a “disaster” in either Executive Order 20-08 or in principal predecessor 20-02 issued March 6, 2020. Rather, the governor declared a “public health emergency” in Executive Order 20-02. In accordance with IC 10-14-3-1 a “public health emergency” is a “disaster” as well. So the governor has declared a disaster. The governor’s declaration of a disaster emergency (triggering his emergency powers) comes with an expiration date, 30 days unless “renewed” (and thereby extended) by the governor or fewer than 30 days if “terminated” by the General Assembly. Executive Order 20-02 even mentions its own 30-day expiration just above the State Seal on the second page. I calculated an expiration at the end of April 4th.
So how is it that Executive Order 20-08 (which traces its origin to Executive Order 20-02) purports to have a duration through April 6, 2020? A simple two-day error is the least of my reservations but is the easiest to demonstrate.
What about church closings? IC 16-19-3-10 authorizes the ISDH to order schools and churches closed “when considered necessary to prevent and stop epidemics.” In Executive Order 20-05 issued March 19,2020 the governor ordered closure of “all K-12 schools in Indiana, public or private,” through May 1, 2020. The scope of the order to include private, parochial schools and the duration to May 1, 2020 are both of questionable validity. The more fundamental defect, however, is that the closure power of IC 16-19-3-10 belongs to the ISDH rather than the governor, and the ISDH is ruled by its Executive Board. The governor’s claim (as in 20-08) that the ISDH “reports to me as the Governor” does not warrant the conversion of ISDH authority to himself.
The major point about Executive Order 20-05 is that the governor backed off from closing churches. This restraint on the part of the governor was either for political reasons or from concern over the constitutionality of such a prohibition of the free exercise of religion. The CLB speculates that the governor was aware of constitutional limitations applicable to churches.
What about churches in EO 20-08? At page 6 of Executive Order 20-08 the governor lists “Religious Entities” among the exemptions to his Order of institutional closure, “provided they adhere to the CDC’s guidance on social gatherings.” That seems to the CLB to be a lame effort to shift responsibility to a federal agency for limiting how many people may worship in one place at one time.
What should we Hoosiers do? The CLB advises everyone to save the lawsuits until later. For the next couple of weeks (maybe longer) let’s just hunker down so that the uninfected can stay that way and so that the infected can convalesce without passing their disease on to others. If the General Assembly wants the governor to have the authority to do what our governor has done, it should consider amendments to IC 10-14-3.
The CLB does not contend that the governor is without the raw power to enforce what he has ordered. See, for instance, Cox v. McNutt, 12 F. Supp. 355 (S.D. Ind. 1935) for a description of how former (and prominent) Indiana Governor Paul Vories McNutt dispatched 1,500 National Guardsmen to suppress labor unrest in Depression-era Vigo County. The three-judge panel upholding McNutt’s actions against the failed request for injunctive relief referred to the National Guard deployment as martial law and declared it to be within the Indiana Governor’s authority. Could Governor Holcomb declare martial law? While such a declaration seems unlikely for political reasons, a declaration of martial law would require little more legal fiction than that which has already been employed.
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¹ The veto power is limited in that the General Assembly can override it by simple majority vote in each house.
² According to Article 5, the only office-holders of the Executive Department are the governor and lieutenant governor. The Secretary of State, Auditor, and Treasurer are within the “Administrative” Department according to Article 6. However, Article 3, Section 1 explains that the Executive Department somehow includes the Administrative.
³ At page 7 of the Order is the listing of law firms as “essential” so that lawyers and staff may work at the law office and clients may visit. Here is the link to Governor Holcomb’s Executive Orders: https://www.in.gov/gov/2384.htm
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