The words “bonehead” and “boneheaded” are slang terms that refer to someone who’s a blockhead, or who’s thick-headed or who is obstinate to the point of being stupid and who performs in a stupid or clumsy manner. In 2020, the New Mexico Boneheaded Award goes to the Republican Party and its Party Chairman Steve Pearce.
GOVERNOR LUJAN GRISHAM ANNOUNCES STATE ECONOMY REOPENING
On Friday, May 16, Governor Michell Lujan Grisham announced that New Mexico will proceed with a gradual, data driven approach to reopening the state’s economy. The Governor issued a revised public health order that took effect on Saturday, May 16 and it runs through May 31. The order requires that all residents when in public spaces must wear face coverings over the mouth and nose.
The revise order allows churches and other houses of worship to operate at 25% capacity offering more leeway than the governor had initially announced. Further, retailers and stores, including national chain stores known as “big box” retailers, can also operate at 25% of their maximum occupancy, rather than having separate standards for each category.
Dine-in restaurants, gyms, salons and movie theaters are still ordered closed, with the governor saying it’s not yet safe for them to reopen at full capacity. Restaurants are allowed to have “curb side” service offering take out. Full-service table dining at restaurants might be possible in early June according to Lujan Grisham depending on further progress.
New Mexico’s testing capacity for COVID-19 is ranked among the nation’s highest, on a per capita basis. According to the New Mexico Department of Health, as of May 17, New Mexico has conducted 122,727 tests that tested negative, 5,847 tests that tested positive, 1,739 reported recoveries and 259 deaths.
The major contributing factor for allowing the state to reopen for business is the state’s coronavirus transmission rate. The goal was to get the state’s coronavirus transmission rate down to 1.15, which means each infected individual transmits the virus to 1.15 other people. According to the state’s statistical modeling, the state’s overall transmission rate was at 1.16.
On May 15, Human Services Secretary David Scrase announced that even with deaths increasing, New Mexico has hit the targeted level of disease transmission of 1.15 for mid-May. Three of New Mexico’s five regions have reduced the spread rate below the 1.15 standard. But the northwestern and southwestern regions of New Mexico are above the 1.15 target goal which include the counties of Cibola County, McKinley County and San Juan County due to the high rate or COVID-19 cases. The three counties are ordered to remain closed entering the “preparation phase” for reopening.
EMERGENCY FUNDING ORDER TO DEAL WITH PANDEMIC
Over the last two months, Governor Lujan Grisham has authorized over $35 million in emergency funding to deal with the pandemic health crisis. The emergency spending has been for protective equipment, testing supplies and other material as New Mexico battles the coronavirus pandemic.
The emergency funding Lujan Grisham has authorized includes:
• $30 million for the Department of Health to purchase personal protective equipment, testing supplies and other materials. $20 million has been used to purchase hundreds of thousands of pieces of protective equipment. The additional $10 million has been set aside if needed in case of a spike in virus infections.
• $3 million to a variety of state agencies to help children, families, older adults and people with disabilities, in addition to broader relief efforts.
• $1.5 million to the Department of Homeland Security and Emergency Management to coordinate relief efforts, and provide emergency medical aid and other services.
• $1 million for the National Guard to provide humanitarian assistance.
GOVERNOR’S REQUEST FOR COOPERATION MET WITH REPUBLICAN THREAT OF A LAWSUIT
In her announcement of reopening the state for business, the Governor emphasized in no uncertain terms that public cooperation is vital. She acknowledged that many or her orders are not popular, especially the wearing of face masks. Lujan Grisham compared the resistance to face mask orders to similar sentiments against mandatory car seats, air bags and seatbelts.
New Mexico Republicans from the get-go have been highly critical of the Democratic governor and her aggressive approach to get a handle on the pandemic. On May 15, shortly before Lujan Grisham’s news conference announcing the phased in reopening of the state for business, the State Republican Party announced they were preparing a lawsuit to stop her actions.
The New Mexico GOP announced that a “team of attorneys” has been assembled in preparation to file a lawsuit against the Democratic Governor. According to Republican party officials, specifics of the legal action will be made once the suit is filed.
House Republican Leader Jim Townsend had this to say about the lawsuit:
“We have heard from jobless workers and businesses across the state, and they are all saying the same thing. ‘Without immediate relief, our livelihood will be lost for good’. … The outpouring of support to fund this legal effort has been overwhelming. The Governor’s orders have put our state in such a position that our only recourse now is legal action. Hundreds of businesses across the state have already gone out of business. 210 restaurants have closed their doors for good. That represents over 4,500 employees who have lost their jobs.”
Republican Party Chairman Steve Pearce had this to say in a statement:
“The governor’s tactics to impose sanctions on small businesses continue to show her refusal to be equitable in her public health orders. … Our position has been to safely and responsibly get New Mexico back to work. The Democratic administration has not only destroyed our economy, but peoples’ lives and livelihoods. … By her continuing to favor national chains over our small business, the governor has inflicted economic and personal hardship on hundreds of thousands of her constituents. … Every paycheck, every job, and the civil liberties of every New Mexican is essential, even if the governor doesn’t think so.”
In response, Lujan Grisham said she was disappointed that Republicans had tried to “politicize” the pandemic. She also said the Republicans had the right to ask the courts to evaluate her actions by saying:
“That right exists and I respect that right, but I believe we will prevail. … So far, we have found we’re on very sound legal footing.”
Lawsuits have already been filed that have challenged the Governor’s restrictions on church services and gun shops. Judges have upheld the orders.
GOVERNOR ACTIONS SOLID UNDER UNITED STATE CONSTITUTIONAL LAW
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.
In 1905, during the small pox epidemic, the United State Supreme Court case of Jacobson v. Massachusetts, 197 U.S. 11 (1905), 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. The United State Supreme Court came 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.
It is also well settled United States Supreme Court constitutional case law that the legislative branch can give the executive branch the authority to issue executive orders in times of national emergency over private enterprise. 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. The case involved President Harry Truman. Truman order seizing of the steel mills and directed the steel mill presidents to operate mills as managers for the United States during the Korean War. The Supreme Court found that Truman did not have the authority. The Supreme Court found 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. Subsequent Supreme Court ruling have found that “executive 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 by enactment of legislation giving them those powers.
GOVERNOR’S ACTIONS ALLOWED UNDER NEW MEXICO STATUTORY LAW
In 1973, the New Mexico Legislature enacted the New Mexico Public Health Act, section 24-1-3, et. seq., (Laws 1973, Chapter 359, as amended) which is administered and enforced by the New Mexico Department of Health. It outlines the powers and authority of the department as follows:
NMSA § 24-1-3. Powers and authority of [Health] department
The [Health] department has authority to:
A. Receive such grants, subsidies, donations, allotments or bequests as may be offered to the state by the federal government or any department thereof or by any public or private foundation or individuals;
B. Supervise the health and hygiene of the people of the state and identify ways to evaluate and address community health problems;
C. Investigate, control and abate the causes of disease, especially epidemics, sources of mortality and other conditions of public health;
D. Establish, maintain and enforce isolation and quarantine;
E. Close any public place and forbid gatherings of people when necessary for the protection of the public health;
F. Respond to public health emergencies and assist communities in recovery;
G. Establish programs and adopt rules to prevent infant mortality, birth defects and morbidity;
H. Prescribe the duties of public health nurses and school nurses;
I. Provide educational programs and disseminate information on public health;
J. Maintain and enforce rules for the licensure of health facilities;
K. Ensure the quality and accessibility of health care services and the provision of health care when health care is otherwise unavailable;
L. Ensure a competent public health workforce;
M. Bring action in court for the enforcement of health laws and rules and orders issued by the department;
N. Enter into agreements with other states to carry out the powers and duties of the department;
O. Cooperate and enter into contracts or agreements with the federal government or any other person to carry out the powers and duties of the department;
P. Cooperate and enter into contracts or agreements with Native American nations, tribes and pueblos and off-reservation groups to coordinate the provision of essential public health services and functions;
Q. Maintain and enforce rules for the control of conditions of public health importance;
R. Maintain and enforce rules for immunization against conditions of public health importance;
S. Maintain and enforce such rules as may be necessary to carry out the provisions of the Public Health Act and to publish the rules;
T. Supervise state public health activities, operate a dental public health program and operate state laboratories for the investigation of public health matters;
U. Sue and, with the consent of the legislature, be sued;
V. Regulate the practice of midwifery;
W. Administer legislation enacted pursuant to Title 6 of the Public Health Service Act, as amended and supplemented;
X. Inspect such premises or vehicles as necessary to ascertain the existence or nonexistence of conditions dangerous to public health or safety;
Y. Request and inspect, while maintaining federal and state confidentiality requirements, copies of:
(1) medical and clinical records reasonably required for the department’s quality assurance and quality improvement activities; and
(2) all medical and clinical records pertaining to the individual whose death is the subject of inquiry by the department’s mortality review activities; and
Z. Do all other things necessary to carry out its duties.
There are at least 12 specific provisions of the New Mexico Public Health Act that empowers the department and in turn the Governor that apply to the corona virus pandemic that need to be emphasized and noted. Those sections are:
Section 24-1-3(C) empowers the department to investigate, control, and abate causes of disease, especially epidemics, sources of mortality, and other conditions of public health.
Section 24-1-3 (D) empowers the department with the authority to establish, maintain and enforce isolation and quarantine.
Section 24-1-3 (E) empowers the department with authority to close any public place and forbid gatherings of people when necessary for the protection of the public health.
Section 24-1-3 (K) Ensure the quality and accessibility of health care services and the provision of health care when health care is otherwise unavailable;
Section 24-1-3 (L) Ensure a competent public health workforce;
Section 24-1-3 (M) empowers the department to bring action in court for the enforcement of health laws and rules and orders issued by the department;
Section 24-1-3 (P) Cooperate and enter into contracts or agreements with Native American nations, tribes and pueblos and off-reservation groups to coordinate the provision of essential public health services and functions;
Section 24-1-3 (Q) empowers the department to maintain and enforce rules for the control of conditions of public health importance;
Section 24-1-3 (R) empowers the department to maintain and enforce rules for immunization against conditions of public health importance;
Section 24-1-3 (U) Sue and, with the consent of the legislature, be sued
Section 24-1-3 (X)Inspect such premises or vehicles as necessary to ascertain the existence or nonexistence of conditions dangerous to public health or safety;
Section 24-1-3 (Z) provides that the health department do all other things necessary to carry out its duties.
CRIMINAL PENALTIES PROVIDED IN STATE LAW
The New Mexico Public Health Act also contains penalty provisions that can be sought and enforced for violations of the Health Department orders:
NMSA§ 24-1-21. Penalties
Any person violating any of the provisions of the Public Health Act or any order, rule or regulation adopted pursuant to the provisions of the Public Health Act is guilty of a petty misdemeanor and shall be punished by a fine not to exceed one hundred dollars ($100) or imprisonment in the county jail for a definite term not to exceed six months or both such fine and imprisonment in the discretion of the court.
Each day of a continuing violation of Subsection A of Section 24-1-5 NMSA 1978 after conviction shall be considered a separate offense. The department also may enforce its rules and orders by any appropriate civil action.
The attorney general shall represent the department.
Links to review the entire Public Health Act can be found here:
PUBLIC HEALTH EMERGENCY RESPONSE ACT
When it comes to business closures, the Governor and the Health Department has been given the authority by the legislature to issue the executive order to close businesses during a health crisis. In 2003, the New Mexico legislature also enacted the Public Health Emergency Response Act. The act empowers the Governor to issue executive orders to respond to a health emergency that threatens the public health, safety and welfare, such as the corona virus pandemic.
It is section 12-10A-5 that empowers the Governor to declare a state of public health emergency and it provides as follows:
A. A state of public health emergency may be declared by the governor upon the occurrence of a public health emergency. Prior to a declaration of a state of public health emergency, the governor shall consult with the secretary of health. The governor shall authorize the secretary of health, the secretary of public safety and the director to coordinate a response to the public health emergency.
B. A state of public health emergency shall be declared in an executive order that specifies:
(1) the nature of the public health emergency;
(2) the political subdivisions or geographic areas affected by the public health emergency;
(3) the conditions that caused the public health emergency;
(4) the expected duration of the public health emergency, if less than thirty days;
(5) the public health officials needed to assist in the coordination of a public health emergency response; and
(6) any other provisions necessary to implement the executive order.
C. A declaration of a state of public health emergency shall not abrogate any disease-reporting requirements set forth in the Public Health Act [ 24-1-1 to 24-1-22 NMSA 1978].
D. A declaration of a state of public health emergency shall be terminated:
(1) by the governor, after consultation with the secretary of health, upon determining that there is no longer a public health emergency; or
(2) automatically after thirty days, unless renewed by the governor after consultation with the secretary of health.
E. Upon the termination of a state of public health emergency, the secretary of health shall consult with the secretary of public safety and the director to ensure public safety during termination procedures.
The link to the entire New Mexico Public Health Emergency Response Act is here:
ANALYSIS AND COMMENTARY
How pathetic. The New Mexico Republican Party’s response to the Governor’s plea for cooperation is to threatened legal action. Exhibiting their characteristic style of right-wing flare and self-righteousness, the Republican party proclaims ““We have heard from jobless workers and businesses across the state, and they are all saying the same thing. “Without immediate relief, our livelihood will be lost for good” they act as if the Governor is not hearing the same thing. The Republican party now threatens to take the “boneheaded” approach of filing a frivolous lawsuit against Governor Michell Lujan Grisham. It is frivolous because the Governor is acting totally within her authority.
Like it or not, and no matter what political party you belong to, Governor Michell Lujan Grisham is on solid United State Constitutional law and state law to issue the health orders, including the closure of businesses. The health orders are not unconstitutional as argued by many “arm chair” constitutional scholars you listen on talk radio and on social media. The orders are based upon cases that predate the adoption of the Constitution. The quarantining of healthy people occurred in 1793 during Yellow Fever. The United States Supreme Court in 1905 upheld state law making small pox vaccines mandatory.
NOWHERE TO BE FOUND WHEN ITS A GOVERNOR OF THEIR OWN PARTY
The New Mexico Republican Party nor its leadership were nowhere to be found when former New Mexico Republican Governor “She Whose Name Shall Not Be Spoken” issued an executive order for an “audit” of mental health services by mental health nonprofits in New Mexico. The outside audit falsely reported that more than $36 million in overbilling, as well as alleged fraud and mismanagement. The former Republican Governor ordered the Human Services Department to cut off Medicaid funding to 15 behavioral health nonprofits operating in New Mexico. The actions of the former Republican Governor devastated New Mexico’s behavioral health system even though the New Mexico Attorney General found no wrongdoing by any of the health care providers as was alleged in the audit. More than 160,000 New Mexicans were receiving behavioral health services in 2014 and essentially lost those services thanks to the Republican Governor and in turn the Republican leadership that lacked any backbone to challenge their party’s Governor and what she did to the mental health system in this state.
THE ORDER TO USE FACE MASKS
Lujan Grisham and top state health officials say face coverings will not stop COVID-19 from spreading, but say it could slow the disease. According to news reports, approximately 8,000 people have requested face masks from the New Mexico state website.
The Governor could have issued directives to law enforcement to issue petty misdemeanor citations resulting in a $100 fine or up to 6 months in jail or a combination of the penalties at the discretion of the judge. She did not do that. What she did do is make it clear she does not want law enforcement officers to start issuing citations to non-mask wearers when she said she hoped “positive peer pressure” would encourage people to wear face coverings when we venture out. The Governor said:
“I am not going to try to go out and find individuals and cite them. I don’t think that wins the day. … Please wear a mask or any face covering. … It’s compassionate. It protects others.”
The New Mexico Supreme Court also recognizes the need and usefulness of wearing face masks. On May 16, the Supreme Court issued an order that anyone entering into New Mexico courthouses or judicial buildings will be required to wear a face covering, though judges are allowed to remove their face masks during hearings to ensure they’re understood. Under the new order, courts will provide masks to individuals who do not have them upon entrance. Republican Chief Justice Judith Nakamura said in a statement:
“State health officials have made it abundantly clear that if each of us wears a mask in public we can help slow the spread of COVID-19 and save lives. ”
FALSE ACCUSATIONS SHOW IGNORANCE OR LYING BY REPUBLICAN PARTY
When the Republican Party says that the Governor is “continuing to favor national chains over our small business”, it shows their ignorance and obstinance that is beyond reason. Virtually all businesses in the state, small and large alike, have been affected with the mandated closures. The Republican argument that the Governor is “favoring national chains over small business” is at best totally false or at worse an outright lie to politicize the pandemic which is exactly what the Republican Party is trying to do.
Before the Governor issued her orders to allow retail businesses to open at 25% capacity, when you drove around Albuquerque to do your retail shopping you would have seen thousands of empty parking lot spaces at Coronado Shopping Center, Winrock Shopping Center, ABQ Uptown, and Cotton Wood Mall on the West Side where all the “big box” stores were closed. You would have also seen the empty parking spaces at big chain restaurants like Chile’s, Season’s 54, Olive Garden, Red Lobster, the Cheese Factory, the Elephant Bar, BRAVO Italian Restaurant, Black Angus, Fuddruckers, Appleby’s, Long Horn Steak House, Ruth Chris just to mention a few that now offer only curbside service. The New Mexico State Police also closed down the big box stores of Total Wine and a Hobby Lobby, both part of a national chain. All new and used car dealerships are also closed, with the New Mexico Auto Dealers Association running ads on how to do business with the franchise dealerships on line.
A UNIQUELY QUALIFIED GOVERNOR TO DEAL CORONA VIRUS CRISIS
It is clear that the corona virus is a very infectious disease that is spreading like a wild fire throughput the world, the United States and New Mexico. The Governor is taking action to get a handle on the health crisis and it’s called leadership. There is no doubt that Governor Michelle Lujan Grisham knows what she is doing and declaring a “Public Health Emergency” was without a doubt the right call as is the phased in reopening of the state she has announced.
Governor Lujan Grisham has unique experience, knowledge and credentials to deal with the pandemic crisis. She is an attorney and has an understanding of the law. From 2004-2007 Governor Lujan Grisham served as the Secretary of the Department of Health, the agency that now assumes power in making decisions regarding coronavirus and public safety. The Governor also served as a longtime Director of the New Mexico Agency on Aging, now the Aging and Long-Term Services Department, experience that is timely because the coronavirus is most serious for individuals over 60, many of whom are in nursing facilities that the Governor as a cabinet secretary oversaw.
The Governors credentials and the success she is having in flattening the curve does not matter to the Republican law makers nor the Republican Party and they could not care less. Both Steve Pearce and New Mexico Republican Party 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. The Republican Party has made it clear that making money “TRUMPS” life itself when they are more concerned about the “right to conduct free commerce.” The Republican Party wants to reopen the state in full and risk another spike or another wave of reported corona virus cases.
Cool heads must prevail during these very difficult times and partisanship must be set aside. The antics of the Republican party and elected Republican House leadership shows the opposite with their threat of a lawsuit. The Republican elected officials and Republican Party 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. Instead of raising money for lawsuits, the Republican Party could actually help raise money to provide financial assistance to the supposedly many workers that they have heard from who need help after losing their jobs.
The Republican Party needs to get the hell out of her way and let the Governor lead and exercise the authority she has been given by the legislature. New Mexico lives are at stake.