Sunday, May 3, 2020

What Authority Does Arizona Governor Ducey Have

American Post-Gazette
Distributed by C O M M O N S E N S E in Arizona
April 30, 2020


With all the hoopla surrounding Arizona Governor Doug Ducey's disastrous press conference yesterday (Wednesday, April 29th), we are missing the big picture: What authority does an Arizona governor have during a declared State of Emergency? It's really quite simple: Let's read the law.

ARS 26-303 (E) During a state of emergency: 1. The governor shall have complete authority over all agencies of the state government and the right to exercise, within the area designated, all police power vested in the state by the constitution and laws of this state in order to effectuate the purposes of this chapter. 2. The governor may direct all agencies of the state government to utilize and employ state personnel, equipment and facilities for the performance of any and all activities designed to prevent or alleviate actual and threatened damage due to the emergency. The governor may direct such agencies to provide supplemental services and equipment to political subdivisions to restore any services in order to provide for the health and safety of the citizens of the affected area.

That is the extent, in law, of the governor's power. Note that the law authorizes the governor complete power of state resources -- that is, public resources. It says nothing about the governor having authority over private resources in a declared state of emergency. If a "state of war emergency" is declared then, yes, the governor has expanded power to include private property. But this is not a war emergency, so the governor is limited by the law and the constitution. Even the police power mentioned is restricted to what the law and the constitution grant.

Governor Doug Ducey has no authority to unilaterally tell a private citizen to stay home; not without court approval after going through the proper legal process. He has no authority to tell private hospitals they can't perform certain procedures without the proper legal process through the court. He can't tell citizens to not go to work. And the governor certainly cannot interject himself into a legal contract by telling a landlord to not evict someone. None of that is appropriate or legal.

Arizona citizens are rightly upset. There is nothing in state law or the constitution that gives power to elected officials -- governors or mayors -- to trash the God-given rights of citizens during a state of emergency. Using "emergency" powers inappropriately is the sign of a despot.

Your Faithful Friend and Servant,
John Jay