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Are COVID-19 executive orders illegal?

By Thomas James posted 12-24-2021 01:42

  

A lot of people ask me if Covid-19 executive orders are constitutional, so I decided to write an article about it.

Do COVID-19 executive orders violate the separation of powers clause? The federal constitution does not contain a separation of powers clause. Nevertheless, its structure and language strongly suggest that the Framers intended the three branches to do different things.

Article I says, “All legislative powers herein granted shall be vested in a Congress….” Article II talks about the President having the executive power. And Article III says courts have the judicial power. Clearly the plan was for legislators to make laws, not to enforce them or adjudicate claims under them; for the judicial branch to interpret and apply laws, not to make them; and for the executive branch to enforce and administer laws, not to make them.

State constitutions follow the same pattern.

What about executive orders then? They look an awful lot like laws but it is the executive branch that issues them, not the legislative branch. Do these orders violate the separation of powers principle?

It isn’t merely an abstract question. Consider this example:

According to the Minnesota legislature, a “person whose identity is concealed by the person in a public place by means of a … mask … is guilty of a misdemeanor.” In 2020, however, Governor Tim Walz effectively ordered people  to violate this law. Executive Order 20-81 provided, “Minnesotans must wear a face covering in indoor businesses and indoor public settings.”

Was Governor Walz ordering everybody to be a criminal? Not according to him. In the same executive order, he declared, “Wearing a face covering in compliance with this Executive Order or local ordinances, rules, or orders is not a violation of Minnesota Statutes 2019, section 609.735.”

Can the executive branch of a government nullify legislative acts?

Sources of the power

For the sake of simplicity, I will be tackling this question at the federal level. The same principles generally will apply to governments at the state level, though.

Because an executive order is an exercise of the executive power, its validity depends on finding a valid source of the power. There are two possibilities: (1) a constitution; (2) legislative authorization. An executive order is unconstitutional if it is not based on one or the other of these two kinds of power.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), is the seminal case on this point. President Truman had issued an executive order directing the Secretary of Commerce to take possession of private steel mills to ensure their continued operation during the Korean War. Steel companies objected. The Supreme Court held that presidential authority to issue a particular executive order “must stem either from an act of Congress or from the Constitution itself.” Id. at 585. Since it was not possible to trace Truman’s order to either of those, the Court held it was unconstitutional.

Constitution

Article II assigns a variety of powers and responsibilities to the President. One of these is to “take care that the laws be faithfully executed.” This might suffice as authority for the issuance of executive orders concerning the operations of agencies within the executive branch that are entrusted with responsibility for implementing laws the legislature has enacted. Obviously, though, it could not serve as a valid source of authority to nullify or suspend the operation of a law that the legislature has enacted.

Legislative delegation of power

Constitutions are not the only source of executive authority to issue orders. In practice, legislative enactments are more often the source of authority for the use of executive orders than constitutions are. Legislative bodies frequently delegate some of their powers to another branch of government. For example, Congress routinely enacts legislation that contains provisions authorizing an administrative agency to enact rules and regulations to implement it.

Congress has also delegated powers to the President for purposes other than to implement a new piece of legislation. The Defense Production Act (50 U.S.C. §§ 4501 et seq.), for example, authorizes the President “to allocate materials, services, and facilities” in whatever way he or she sees fit to meet “national defense” needs. President Trump invoked this delegated power during the COVID-19 pandemic as the basis for an executive order directing the Secretary of Agriculture to do whatever was necessary to ensure the continuation of meat and poultry processor operations.

A Congressional delegation of authority may be either express or implied. In some cases, it may implicitly arise from a long period of acquiescence without objection. In United States v. Midwest Oil Co., 236 U.S. 459, 470-71 (1915), for instance, the Supreme Court upheld the presidential power to create Indian reservations, even though neither the Constitution nor any statute conferred that power on the President. The Court refused to declare the creation of reservations unconstitutional. Why? Because “Congress did not repudiate the power claimed or the … orders made. [Congress] uniformly and repeatedly acquiesced in the practice…” Id. at 471.

Scope of the power

Returning to the Minnesota example, legislative delegation must be the source of Governor Walz’s power to issue an executive order, if it has one. In the case of the mask mandate, then, the question is whether it was within the scope of the legislature’s delegation of power to the executive branch.

Minnesota Statues section 12.21 gives the governor certain enumerated emergency powers, such as the power to direct and control “the conduct of persons in the state, including entrance or exit from any stricken or threatened public place, occupancy of facilities.” Section 12.31 gives the governor the power to declare a peacetime emergency when an “act of nature” endangers life or property. Subdivision 3 of Section 12.21 specifically authorizes the governor to “make, amend and rescind the necessary orders and rules to carry out of the provisions of this chapter … within the limits of the authority conferred by this section….” These orders have the “full force and effect of law.” (Minn. Stat. § 12.32.)

The statutes authorize the governor to declare an initial state of emergency for five days. An Executive Council can extend it for 30 days.

A majority vote from both houses of the Legislature could end a peacetime emergency, but efforts to do that have not met with success. Court cases challenging the constitutionality of the mask mandate also have not been successful.

Legislative curtailment of the power

A legislative body can restrict or curtail an executive branch’s power and authority to issue executive orders if the power derives solely from a legislative delegation of it. What Congress giveth Congress may take away. A legislative body would violate the separation of powers, however, if it were to attempt to revoke an executive order issued pursuant to a power which the Constitution grants solely to the executive branch.

Other limitations

The separation of power principle is not the only constitutional limitation on executive orders. The constitution also imposes specific limitations on government action. For example, the First Amendment restricts governmental power to infringe on speech, religion and other freedoms. The Fourteenth Amendment prohibits discrimination. And so on. Courts must determine the scope of these limitations in individual cases. In practice, these limitations, more than separation of powers, are where the court battles over COVID-19 executive orders are most likely to continue to be fought.

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