Arizona Attorney General Argues Executive Order “Exceeds The Governor’s Statutory Authority”

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(Photo by Tim Evanson/Creative Commons)

PHOENIX – Late Monday, the Arizona Attorney General’s Office filed a supplemental brief in the lawsuit against Governor Doug Ducey by small business owners. The Attorney General advises the Court that the law “properly construed, does not authorize the continued disparate treatment of bars and restaurants, as contained in Executive Order 2020-43, seven months into this emergency.”

The Attorney General called on the Court to “conclude that EO 2020-43, as applied to Plaintiffs, exceeds the Governor’s statutory authority.”

The brief reads in part:

Three key facts have become clear from Thursday’s evidentiary hearing: 1) the Governor unquestionably used his “state of emergency” power to excuse restaurants from complying with a statutory requirement, specifically A.R.S. § 4-205.02(C), while at the same time discriminating in other respects against similarly situated bars; 2) there are no set criteria for ending this emergency, confirming that—seven months into it—the Governor has claimed for himself the indefinite power to act legislatively; and 3) if § 26-303(E)(1) really is as broad as the Governor claims, then it is unconstitutional, as the Michigan Supreme Court held just ten days ago when interpreting a similar statute. In re Certified Questions From U.S. Dist. Court, — N.W.2d —, 2020 WL 5877599, at *3 (Mich. Oct. 2, 2020) (The “act is an unlawful delegation of legislative power to the executive branch in violation of the Michigan Constitution.”).

There is a better way—one that preserves the constitutionality of § 26-303(E)(1) and respects the separation of powers. This Court should conclude as a matter of statutory interpretation that § 26-303(E)(1) provides a much more temporally constrained power that must be exercised even-handedly to address the exigencies of the emergency. See AG’s 9/4/2020 Brief at 4-11. After adopting that construction, the Court should uphold the constitutionality of the Statute, but conclude that EO 2020-43, as applied to Plaintiffs, exceeds the Governor’s statutory authority. The Governor can call the Legislature into special session to address through legislation the secondary economic effects of the COVID-19 pandemic that his current EO attempts to address through executive fiat.

If a narrow construction of the Statute is not adopted, then it is likely subject to constitutional attack under the Arizona Constitution based on the non-delegation doctrine for the reasons set forth in In re Certified Questions.

The case in question involves bars and saloons across Arizona who have argued that they have been unfairly subjected to Ducey’s Executive Order and face “imminent economic disaster” as a result.

Last week in court, under questioning by the plaintiffs’ attorney, Ilan Wurman, the state’s top health official, Dr. Cara Christ, admitted that she has no idea when or under what conditions she would recommend changes to Ducey’s Executive Order 2020-43.


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