Ever since Governor Michelle Lujan Grisham issued her Executive Orders to close the state there have been major outcry’s and complaints of “executive abuse of power” and arguments that the orders are violating people’s civil rights protected by the United States and New Mexico State Constitutions. The New Mexico Republican Party and the New Mexico Sheriff’s Association have now joined the 3 ring Republican Circus of Criticism against Governor Michelle Lujan Grisham.
This blog article is a deep dive analysis of the recent developments and a discussion of the law when it comes to the constitutional arguments made against the Governor’s public heath orders.
RECENT NEWS DEVELOPMENTS
On Sunday, May 10, it was reported that New Mexico Republican Party Chairman and the President of the County Sherriff’ Association are asking United States Attorney General William Barr to look into Governor Michelle Lujan Grisham’s health orders aimed at stopping the spread of COVID-19. State Republican Party Chairman Steve Pierce and Cibola County Sherriff President Tony Mace each sent letters to Barr last week seeking a review into the health orders that have shuttered some businesses since late March. They say the orders, which have closed several small businesses, violate resident’s civil rights.
Pearce wrote Barr:
“We want to express our fears and frustrations regarding New Mexico Governor Lujan Grisham’s public health order, a policy many in our state believe to be a blatant violation of peoples’ civil rights, liberties and their right to conduct free commerce … The situation in New Mexico is one that is unjust and inequitable.”
Sheriff Tony Mace wrote Barr:
“The governor has been discriminatory in her policies, keeping big box corporate giants open, draining New Mexico dollars out of state, while shutting down mom and pop locally owned establishments. … This is not only preferential treatment for the big box stores but a violation of the civil rights of our small business owners whose livelihoods are now in free fall.”
BOTH “BITCHING IS NOT FIXIN” NOR MAKES IT TRUE
Republican State Party Chairman Steve Pearce and the New Mexico Sheriff’s Association President Tony Mace can bitch all they want to whoever they want about the Executive Health Orders of Governor Mitchell Lujan during the corona virus pandemic, but what they say does not make it true. Both are dead wrong when they think the Governor has no authority to issue the health orders. The only thing that both Chairman Pierce and Sheriff Mace are revealing to the United States Attorney General and the public is just how ignorant they are of the law unless it’s just pathetic grandstanding on their part.
Apparently, Cibola County Sherriff Mace never travels to Albuquerque to go retail shopping nor goes to restaurants because if he did he would see thousands of empty parking spaces at Coronado Shopping Center, Winrock Shopping Center and ABQ Uptown where all the “big box” stores are closed. He would also see the empty parking spaces at big chain restaurants like Chile’s, Season’s 54, Olive Garden, Red Lobster, the Cheese Factory just to mention a few who now offer only curbside service. The New Mexico State Police has also closed down the big box stores of Total Wine and a Hobby Lobby, both part of a national chain.
If the arguments being made by Sheriff Mace sound familiar, they are. They are very similar to the constitutional arguments Mace and the New Mexico Sheriffs association made to oppose the “red flag” law enacted by the 2020 New Mexico legislature allowing the seizure of guns by court order from individuals deemed an imminent danger and threat to themselves or others. Then, as now, Mace argues there is an unreasonable taking of property and a denial of due process of law.
It’s downright embarrassing and hypocritical that the likes of former US Congressman Steve Pierce would send a letter to Attorney General Barr. Pierce is a former member of the ultra-right-wing Congressional Freedom Caucus and he is a strong supporter of President Donald Trump. Pierce has yet to criticize any of the executive orders President Trump has issued during the pandemic.
Least anyone forget, Steve Pearce also ran for Governor as the Republican nominee against Democrat Michelle Lujan Grisham and he lost in a landslide. Based on what Steve Pierce wrote and his actions now, there is little doubt he would have done absolutely NOTHING during this deadly pandemic to “flatten the curve”. A Governor Pierce would have ignored the spread of the disease allowing it to run its course resulting in even more deaths of many New Mexicans.
Both Steve Pearce and Tony Mace apparently believe that commerce and the economy Trump’s the rights of “life, liberty and the pursuit of happiness” just as much guaranteed under the constitution as the right to commerce. Their actions now call into question what they will do if a vaccine is found and if mandatory inoculation is authorized by congress or state governments which has in fact happened in the past.
BACKGROUND
On March 11, Governor Michelle Lujan Grisham became the first New Mexico Governor to invoke the 2003 Public Health Emergency Response Act (PHERA), issuing an Executive Order declaring a “public health emergency” giving her administration broad powers to deal with the coronavirus . The governor urged people to avoid public gatherings, sanitize common surfaces and minimize contact with other individuals, even if it means staying home from church or going out less often in order to slow transmission of the virus.
On March 12, New Mexico Health Secretary Kathy Kunkel announced a ban on public mass gatherings of 100 people or more, as the state’s efforts to slow the spread of the coronavirus rapidly intensified. The ban announced applies to facilities such as auditoriums, stadiums, arena, large conference rooms, meeting halls, theaters, or any other confined indoor or outdoor space. The ban was later modified to prevent gatherings of more than 5 and require social distancing of 6 feet.
https://www.abqjournal.com/1430774/nm-health-secretary-issues-ban-on-large-public-gatherings.html
On April 30, Governor Michelle Lujan Grisham announced that she was extending the quarantine orders another two weeks to May 15. The order was set to expire May 1. Governor Michelle Lujan Grisham extended and the announced closures of all “non-essential” businesses statewide until May 15. The mandated closures included all retail stores, including malls, offices, work-spaces, retailers, except curbside-delivery will be allowed, dine-in restaurants and bars, except curbside-delivery, liquor establishments, malls, gyms, barber shops and salons, theaters and the 14 day quarantine order for out-of-state airport travelers Social distancing was mandated as was the limitation of people gathering to 5 or less.
You can read more the Executive Orders here:
https://www.governor.state.nm.us/wp-content/uploads/2020/03/COVID-19-DOH-Order-fv.pdf
http://www.rld.state.nm.us/uploads/PressRelease/b88957513a09474898000e52177885b3/UPDATED_DOH_PHO.pdf
ACCELERATED EFFORTS TO FIND A VACCINE
News agencies are reporting that the medical research to find a vaccine for the corona virus is being expedited by medical researchers, and a vaccine just may be a few months away.
According to the Milken Institute, an independent economic think tank in California, there are currently more than 40 clinical trials around the word attempting to find a vaccine for the corona virus. A joint $1 billion collaboration agreement has been announced by the U.S. government and Johnson & Johnson on March 30 to develop a vaccine. The approaches are varied, but all involve training the body’s immune system to recognize and remember the virus and produce antibodies to fight the disease.
https://news.harvard.edu/gazette/story/2020/04/harvards-coronavirus-vaccine-efforts/
A vaccine would normally take years, if not decades, to develop. Researchers hope to achieve the same amount of work in only a few months. Most experts think a vaccine is likely to become available by mid-2021, about 12-18 months after the new virus, known officially as Sars-CoV-2, first emerged. That would be a huge scientific feat and there are no guarantees it will work.
https://www.bbc.com/news/health-51665497
MOST NOTABLE ACT OF DEFIANCE RESULTS IN NM SUPREME COURT COMPLIANCE ORDER
The most notable act of defiance thus far has come from Democrat Grants Mayor Martin Hicks, who has reopened city hall and ordered city workers back to work. On Monday, April 27, Hicks vowed in defiance to allow all small businesses in Grants to reopen and he encouraged businesses in his city to defy the governor’s orders and reopen to the public. Governor Lujan Grisham for her part said the mayor’s plan makes “absolutely no sense whatsoever” and warned that State Police would continue enforcing the health orders.
When asked about possible legal action against him, Hicks said:
“Bring it on baby, she is violating the Constitution of the United States of America and if she writes me a ticket I am going to sue her. I’m not going to sue her in state court, I’m going to sue her in federal court, where the U.S. Attorney General can look at it.”
https://www.cibolacitizen.com/breaking-news-news/mayor-determined-stand-his-ground
Mayor Hicks was given a cease and desist order by the New Mexico Attorney General and the Attorney General took the matter to New Mexico Supreme Court. On April 30, the New Mexico Supreme Court ordered Grants Mayor Martin “Modey” Hicks to comply with the state’s emergency public health orders and to obey the state’s pandemic-related restrictions on business operations. If Mayor Hicks fails to honor the Supreme Court orders, he could wind up jailed for contempt of court and the Attorney General could seek his removal from office.
NEW MEXICO REPUBLICANS MAKE CONSTITUTIONAL ARGUMENTS
On Tuesday, April 28, New Mexico House Republican legislators sent a letter to the Governor urging her to accelerate the lifting of restrictions and also made arguments that the Governor exceeded her authority. They argued that many businesses won’t survive if restrictions last through mid-May. They also said New Mexicans are growing restless and may take matters into their own hands. The lawmakers wrote there is a need “to keep the situation from devolving into social chaos.”
In a conference call with the media to release the letter, the New Mexico Republican law makers went so far as to suggest that civil unrest and “social chaos” will soon occur if the state is not reopened for business soon. Republican House Minority Whip Rod Montoya of Farmington told reporters that the state needs to avoid a “Kent State situation”. Kent State was where the Ohio National Guard shot Viet Nam war protesters in 1970.
TRUMP INCITES INSURRECTION AND CIVIL DISOBEDIENCE
President Donald Trump has gotten into the act of promoting civil disobedience like that of Mayor Hicks against Governor Lujan Grisham. On April 17, in a dangerous series of tweets, President Trump incited citizen insurrection against the duly elected Democratic governors of the states of Michigan, Minnesota and Virginia where the Governors are doing their best to “flatten the curve” of the pandemic with little or no help from Trump. One day after Trump issued guidance for re-opening America that clearly deferred decision-making to the Governors of the states, Trump undercut his own guidance by calling for criminal acts against the Democratic governors for not opening fast enough.
Trump tweeted, “LIBERATE MINNESOTA!” followed immediately by “LIBERATE MICHIGAN!” and then “LIBERATE VIRGINIA, and save your great 2nd Amendment. It is under siege!” The day before there were demonstrations in Michigan where armed protesters surrounded the state capitol building in Lansing chanting “Lock her up!” in reference to Democratic Governor Gretchen Whitmer, and “We will not comply,” in reference to her extension of the state’s coronavirus-related stay-at-home order. Smaller armed groups protested on the state capitol grounds in Richmond, Virginia, and outside the governor’s mansion in St. Paul, Minnesota.
https://www.washingtonpost.com/outlook/2020/04/17/liberate-michigan-trump-constitution/
On Monday, May 11, President Trump accused without evidence Democratic Governors of moving to reopen their states too slowly amid the coronavirus pandemic to hurt his chances of reelection. In a tweet, Trump singled out the battleground state of Pennsylvania, where officials in four counties are threatening to defy Gov. Tom Wolf’s stay-at-home order, which was extended for most of the state through June 4. Trump tweeted:
“The great people of Pennsylvania want their freedom now, and they are fully aware of what that entails. … The Democrats are moving slowly, all over the USA, for political purposes. They would wait until November 3rd if it were up to them. Don’t play politics. Be safe, move quickly!”
A recent Yahoo News/YouGov poll found 59% of Americans believe states such as Georgia, Florida, Minnesota and Texas are “moving too fast” to reopen. while only 33% say the pace is “about right.” Just 8% say it’s “too slow.” Public health experts, including members of the White House coronavirus task force, have warned that reopening too soon could lead to more death and economic damage. Trump has acknowledged that “there will be more death” as states move to relax their stay-at-home mandates in the coming months.
GOVERNOR GETS HIGH MARKS FOR HANDLING PANDEMIC
On Apr 24, 2020, “The Majority Institute – Public Policy Polling” released its newest New Mexico survey. It found that Governor Michelle Lujan Grisham has a 62% approval rating for her handling of the coronavirus, to only 26% who disapprove for a net +36 rating.
Lujan Grisham secured overwhelming support from both Democrats (83% to 9%) and independents (60% to 28%) for her handling of the virus and received good marks from 32% of Republicans as well. 63% of voters in the state think the state’s response to the coronavirus has been ‘about right.’ Only 27% think it’s overreacting.
By contrast just 35% of voters think the federal response to the virus has been about right, with 49% saying that the Trump administration’s response has been an under reaction. Lujan Grisham’s overall approval rating shows a high degree of popularity, with 59% approving and just 32% disapproving of the job she’s doing. By contrast Trump has only a 40% approval rating, with 56% of voters disapproving of him.
CONSTITUTIONAL ARGUMENTS MADE AGAINST PUBLIC HEALTH ORDERS
Five major arguments have been made that the Governor’s Executive Orders violate rights protected by the United States and State Constitutions:
1. Executive Orders are not law and only a legislative body can enact laws and prescribe remedies under those laws enacted. According to this argument, Executive Orders are not law over the “private citizen” and an Executive Order only has force and effect of law within the executive branch and all agencies in that branch.
2. Executive Orders mandating the closure of gun stores violate the Second Amendment right to bear arms under the United State Constitution.
3. Executive Order mandating the closure of businesses violates a person’s Fourth Amendment right under the United State Constitution against unreasonable search and seizure and that property can only be seized with a court approved warrant. According to one argument offered, a seizure in not just the physical property but includes prohibiting the labor people who own the business and the loss of income from the closure of the business. A “seizure” of property occurs when “there is some meaningful interference with an individual’s possessory interests in that property.” United States v. Jacobsen, 466 U.S. 109, 113 .
4. Executive Order mandating the closure of businesses violates the 14th Amendment of the United States constitution by depriving “any person of life, liberty and property, without due process of law.
5. Executive Orders deprive citizens of “equal protection” under the law and no special privilege, under law can be given to one entity, person or business, that does not give equally to all others. Where one business is order closed by law enforcement, while a similar business selling merchandise is allowed to stay open, the closed business is deprived of equal protection under the law.
COMMENTARY AND ANALYSIS
The blunt truth is that virtually all the listed 5 constitutional arguments made against the Governor’s Public Health Executive orders are outright wrong or seriously misplaced with application. The United States Supreme court has said in rulings that it is constitutional in a public health crisis for the government to require people to do certain things or to prohibit certain things that they normally would not do or could do.
US SUPREME COURT HAS RULED IN PAST GOVERNMENT CAN ORDER MANDATORY VACCINATION
Given Trump’s and the GOP’s denial of scientific and medical research, such as in their denial of global warming, it is highly likely that it will not matter to them if a vaccine is developed for the corona virus. Trump himself did not take the warnings of the pandemic seriously when told of it repeatedly for 3 months and he even refuses to wear a protective mask. Trump did nothing to prepare the country for the pandemic which resulted in the country being totally unprepared for it. Trump also wanted the virus to run its course believing it would pass within a few months.
If Trump and the Republicans are still in power after the 2020 November general election, it is doubtful they will compel mandatory vaccination if in fact a vaccine is developed for the corona virus, even though there is historical precedent where the United State Supreme has ruled that the government has the authority to order vaccination of the public to curb disease. Trump will no doubt promote civil disorder once again for his base to resist vaccinations and perhaps Steve Pierce, Sheriff Mace and Mayor Hicks will do the same in New Mexico.
The first legal precedent where it was held government can mandate vaccinations dates backs to 1905 during the small pox epidemic. In the United State Supreme Court case of Jacobson v. Massachusetts, 197 U.S. 11 (1905), the Supreme Court upheld the authority of states to enforce compulsory vaccination laws. The United States Supreme Court upheld the authority of Cambridge, Massachusetts, to require smallpox vaccinations when a Massachusetts minister refused to get a vaccination for the disease.
The US Supreme Court’s decision was that the freedom of the individual must sometimes be subordinated to the common welfare and is subject to the police power of the state. The court ruled that the state did have a right to legally require the vaccinations with the United State Supreme Court coming down in favor of state governments being allowed to mandate vaccinations so long as it is reasonable to protect the public health, safety and welfare of citizens.
EXECUTIVE ORDERS CAN BE ISSUED TO THE EXTENT ALLOWED BY LEGISLATIVE BRANCH
In 1952, the United States Supreme Court ruled in the case of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) that the authority to issue executive orders is whatever authority the legislative branch gives to the executive.
On April 8, 1952, to avert a nationwide strike of steel workers, which he believed would jeopardize national defense, President Harry Truman issued an Executive Order directing the Secretary of Commerce to seize and operate most of the steel mills in the United States. The Executive Order was not based upon any specific statutory authority. It was based generally upon all powers vested in the President by the Constitution and laws of the United States and as President of the United States and Commander in Chief of the Armed Forces.
The Secretary of Commerce issued an order seizing the steel mills and directing their presidents to operate them as managers for the United States. The steel companies sued the Secretary of Commerce in Federal District Court asking for a “declaratory judgment” and an injunction to prevent the Secretary of Commerce from enforcing Truman’s Executive Order.
The United States Supreme Court ruled that the President’s power, if any, to issue such an emergency orders must stem either from an act of Congress or from the Constitution itself . The United States Supreme Court ruled that Truman’s Executive Order was not authorized by the Constitution nor laws of the United States. There was no congressional statute which expressly or implicitly authorized the President to take possession of the steel mills.
The power Truman sought was found by the Supreme Court to be and exercise of lawmaking power, which the Constitution vests in the Congress alone. Absent congressional authority granted by statute, or a provision in the Constitution, the President of the United States has no inherent power to assume the role of lawmaker in times of emergency. In other words, the power of the President and by extension state governors to issue executive orders is whatever power the congress or the state legislators gives to them.
Since the 1952 Supreme Court ruling, Congress has enacted many laws giving the President executive order authority to take action. A good example is the Defense Production Act. Trump has invoked the Defense Production Act (DPA). Invoking this act gave Trump broad authorities to order domestic manufacturing industries to make products the nation needs in a time of crisis, such as masks and ventilators. The DPA was is modeled after the laws from 1941 and 1942 that gave the White House the ability to tell private companies what to make for war time Ford Motor Company made nearly 300,000 vehicles, including tanks, for World War II.
NEW MEXICO LEGISLATURE HAS EMPOWERED GOVERNOR
In New Mexico, the legislature has empowered the Governor issue the executive orders to respond to a health emergency that threatens the public health, safety and welfare, such as the corona virus pandemic with the enactment of the Public Health Emergency Response Act. On March 11, Governor Michelle Lujan Grisham became the first New Mexico Governor to invoke the 2003 Public Health Emergency Response Act (PHERA), issuing an Executive Order declaring a “public health emergency” giving her administration broad powers to deal with the coronavirus.
The link to the New Mexico statute is here:
https://law.justia.com/codes/new-mexico/2006/nmrc/jd_ch12art10a-712b.html
You can read the Executive Orders here:
https://www.governor.state.nm.us/wp-content/uploads/2020/03/COVID-19-DOH-Order-fv.pdf
http://www.rld.state.nm.us/uploads/PressRelease/b88957513a09474898000e52177885b3/UPDATED_DOH_PHO.pdf
PATHETIC GRANDSTANDING
The actions of Democrat Grants Mayor Martin “Modey” Hicks vowing in defiance to allow all small businesses in Grants to reopen is about as pathetic as it gets seeing as he does not have that authority and the Governor does. The interviews Mayor “Modey” Hicks gave to the news media looked like that of an unhinged fool of New Mexico proportions. His confrontation with a constituent taking issue with him said it all and can be viewed here:
It appears that Republican lawmakers and Republican Chairman Steve Pearce cannot handle the fact that Governor Lujan Grisham is getting high marks for her handling of the pandemic by the public. The Governor has said that it’s time for New Mexico to consider slowly relaxing its restrictions even though she has extended the current public health orders through May 15, yet Pearce and Sheriff Mace want the United States Attorney General to interfere with state’s rights. Governor Lujan Grisham has made it clear that her administration is working on detailed plans for reopening the state in phases.
But none of that matters to the Republican law makers nor to Pearce and they could not care less. Both Steve Pearce and New Mexico Republican House leadership choose to promote a right-wing agenda more concerned about commerce and profits and not people’s lives nor the public health, safety and welfare. Steve Pearce made it clear that making money “Trumps” life when he wrote in part to Barr that the Governor’s orders interfere with the “right to conduct free commerce.” They apparently want to reopen the state sooner rather later for business too soon and risk another spike or another wave of reported corona virus cases.
CONCLUSION
Cool heads must prevail during these very difficult times, but the antics of some elected officials, such as Democrat Grants Mayor Martin “Modey” Hicks Mayor and the Republican House leadership shows the opposite. It was totally irresponsible for the Republican law makers to say civil unrest and “social chaos” will soon occur if the state is not reopened for business soon.
The Republican elected officials and Republican Party Chairman Steve Pearce ignore that New Mexico citizens and businesses are in fact doing their very best to honor the restrictions placed upon them and are making the sacrifice to ensure the state does not re open too soon.
Republican State Chairman Steve Pearce and Sheriff Mace need to “shut the front door” and get the hell out of the way and let the Governor lead and exercise the authority she has been given by the legislature. New Mexico lives are at stake.
For a related blog article see: