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So on July 31, 2020, the “Shelter in Place” executive order issued by Governor Brian Kemp is supposed to expire. Amongst some of the restrictions included is the prohibition on gatherings of more than fifty people and requirements for Georgia businesses to operate with sanitization and social distancing requirements. Over the past several months, there have been several executive orders issued by the federal, state, and local levels. Many have come and gone while others are still in effect. It’s tough to tell which orders are still, in fact, since it is clear from the news reports that this pandemic is nowhere near over.
While most people go along with these executive orders or at least give lip service because they are based on proper guidance to keep us all safe from the dreaded Corona Virus, the question is, are all of these executive orders legal? There has been a little legal challenge to these executive orders in Georgia. Sure, Governor Kemp and Mayor Bottoms squared
off for a time over the requirement to wear a mask, but that case settled almost as quickly as it started. In other states, people went to jail for reopening businesses too soon. However, even in this state, some found themselves in trouble when they defied the Governor’s orders regarding gatherings and worship services at church.
Article I, Section I, Paragraph 3 of the Georgia Constitution provides;
Each person has the natural and inalienable right to worship God, each according to the dictates of that person’s conscience, and no human authority should, in any case, control or interfere with such right of conscience.
Then Article I, Section I, Paragraph 9 provides in part; “The people have the right to assemble peaceably for their common good. . .” The First Amendment to the United States Constitution provides “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof. . .” So does the Governor of a state have the authority to prohibit people from gathering and worshiping?
This post is not an argument about the reasoning behind closing the churches for worship. In comparison, some say that it is just good common sense and hygiene for people not to gather and spread the virus. Others argue that the most logical place to be in the face of death from a deadly virus to pick two or three (or a hundred and fifty) gathered in God’s name to ask for deliverance. This argument is about the lawful constitutional authority of a governor or other executive to dictate the law.
The reason for the executive orders in the face of CoVid-19 was to deal with an emergency where people were getting infected and dying faster than the healthcare system could take care of them. The objective was to shut down the state, keep people at home, and prevent the spread of the virus. Some orders when on to legislate and change laws governing doing business. The order that permits notarization of documents by the remote video feed is one such change in the law that has not been vetted by the General Assembly. Here the Governor moves from merely protecting the public to a legislative function. Arguably, these adaptations of the law are necessary to keep the economy moving and business open but what happens to these changes to Georgia law when the emergency order expires? Will the courts uphold these executive changes to the law?
Laws are generally made at the state level by the General Assembly, passed through both houses, and then signed into law by the Governor. It’s the system of checks and balances that has worked in this state and country for over two centuries. While an executive order is sufficient to handle emergencies, at what point is there a requirement that the legislative branch oversees the changes to the law enacted by the executive branch. How many times can the Governor extend an executive decree without involving the general Assembly? The Governor’s supervisory authority is set by statute. However, it is inevitable that the General Assembly ever contemplated an emergency that would last over six months.
Years from now, the legacy of the Corona Virus pandemic will be debating the government response. At some point, that argument will move beyond the political posturing of who was right and who was wrong and will move on to the constitutional challenges of ruling a city, state or country by executive decree. No matter who was right or wrong, a benign dictator is still a dictator. At some point, we will need to fall back to our contrition, all roots as a democratic republic.
CantonLawyer 