On July 29, 2020, Governor Ivey issued her 15th Supplemental State of Emergency: Coronavirus Proclamation. In that order, Ivey invoked the Alabama Emergency Management Act to promulgate the amended “Order of the State Health Officer Suspending Certain Public Health Gatherings Due to Risk of Infection by COVID-19” as “an order, rule, or regulation under the applicable provisions of the Emergency Management Act. Ivey further ordered that the Health Officer’s order be enforced by the law-enforcing authorities of the state, that those who violate the order should be fined $500 or imprisoned, and that any provision of state law which conflicted with the order be suspended for the duration of the state of emergency.
It is my contention that this and all 14 previous proclamations promulgating orders from the Governor under the Alabama Emergency Management Act in response to the coronavirus are violations of Sections 21 and 43 of the Constitution of Alabama, 1901. Those sections declare:
"That no power of suspending laws shall be exercised except by the legislature."
"the executive shall never exercise the legislative and judicial powers, or either of them."
These sections of our constitution establish the separation of powers doctrine for the state of Alabama. As the US Supreme Court has noted, the
“division of power among the three branches is violated where one branch invades the territory of another, whether or not the encroached-upon branch approves the encroachment.” (New York v. United States, 505 US 144)
This separation of powers doctrine is enshrined in both the US Constitution and the Constitution of Alabama, but as the supreme court of our state has noted on several occasions,
“there is a marked difference between the structure of the Constitution of the United States and that of the Constitution of Alabama” (State ex rel. King v. Morton, 955 So. 2d 1012)
“In Alabama, separation of powers is not merely an implicit ‘doctrine’ but rather an express command; a command stated with a forcefulness rivaled by few, if any, similar provisions in constitutions of other sovereigns.” (Ex parte James, 836 So. 2d 813)
This doctrine of the separation of powers is established by the Constitution of Alabama as
“a fundamental legal principle [which] mandates that no branch of government be allowed to exercise any power vested in another branch and not vested in it.” (Ex parte Jenkins, 723 So. 2d 649)
As our supreme court has repeatedly recognized,
“it is clear and manifest that the powers of government are distributed to three departments, each of which is confined to a separate body of magistracy (the legislative, the executive, and the judicial), and that each of these departments is emphatically forbidden to exercise any of the powers belonging to either of the others, `unless expressly directed or permitted by the constitution.'” (Montgomery v. State, 163 So. 365)
Ivey’s coronavirus proclamations have invoked the Alabama Emergency Management Act which purports to give the Governor the authority
“To make, amend, and rescind the necessary orders, rules and regulations to carry out the provisions of this article within the limits of the authority conferred upon him or her in this article, with due consideration of the plans of the federal government.” (Ala. Code § 31-9-6(1))
“To perform and exercise such other functions, powers and duties as are necessary to promote and secure the safety and protection of the civilian population.” (Ala. Code § 31-9-8(a)(5))
The Governor’s coronavirus proclamations indicate that she is interpreting these provisions of the Emergency Management Act as granting her the autonomous power to make laws by which the people of Alabama are to be governed during this crisis. Her orders for everyone to wear masks in public, for certain businesses to remain closed, for other businesses to open under strict capacity and sanitation guidelines, and for the people to refrain from gatherings are all examples of the Governor assuming for herself the functions of the legislature by making laws for the people of Alabama.
The Governor may argue that she is only acting as an agent of the legislature in fulfilling a role that the legislature voluntarily delegated to her, but our courts have repeatedly ruled against that argument. Our supreme court has already determined that:
“the Executive is likewise limited for the obvious reason that he cannot be an agency of the Legislature under the separation of powers provisions of our Constitution.” (Opinion of the Justices (1977) 345 So. 2d 1354)
And our courts have similarly declared that the legislature has no authority to delegate its legislative power.
“It is settled law that the Legislature may not constitutionally delegate its powers, whether the general power to make law or the powers encompassed within that general power … However, the doctrine of separation of powers does not prohibit the Legislature's delegating the power to execute and administer the laws, so long as the delegation carries reasonably clear standards governing the execution and administration.” (Folsom v. Wynn, 631 So. 2d 890)
"The general proposition is everywhere recognized that the Legislature cannot delegate its legislative powers, save as authorized by the Constitution itself." (In re Opinions of the Justices (1936) 166 So. 706)
“While a legislative body cannot delegate its legislative power to make a law, it may delegate the power to an arm of the government to make and enforce regulations for the execution of a statute according to its terms.
“‘The true distinction,’ said Judge Ranney for the Supreme Court of Ohio, in Cincinnati, Wilmington & Zanesville R. R. Co. v. Commissioners, 1 Ohio St. 77, 88, in a declaration which, according to Sanborn, Circuit Judge, in St. L. Mer. Bridge Ter. R. R. Co. v. U. S., supra, has been repeatedly upheld by the Supreme Court of the United States, ‘is between a delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done. To the latter no valid objection can be made.’” (State v. McCarty, 5 Ala. App. 212, 59 So. 543)
Each and every one of Ivey’s proclamations which subject the citizens of Alabama to an order or rule which had not been previously and expressly passed into law by the legislature is a violation of Section 43 of the Constitution of Alabama.
Additionally, all of Ivey’s coronavirus proclamations have included an order similar to the provision in her July 29, 2020 proclamation that:
“to the extent a provision in this supplemental proclamation conflicts with any provision of state law, that law is hereby suspended for the duration of this state of emergency, and this proclamation shall control.”
Our constitution declares and our courts have frequently ruled that the legislature is the only branch of government which has the authority to suspend laws. In fact, our constitution insists on this point so strongly that it places the restriction on suspending the law within the Declaration of Rights about which the constitution declares:
“we declare that everything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate.”
The Governor of Alabama never has had and never will have the authority to suspend the laws of the state. That authority rests solely in the power of the legislature. As our supreme court has pointed out:
“The legislature cannot authorize suspension of law by another agency, even where the legislature itself has the power to suspend the law … The power to suspend having been vested exclusively in the legislature by the Constitution, a fortiorari it could not be delegated to the Governor in view of Section 43 of our Constitution.” (Opinion of the Justices (1977) 345 So. 2d 1354)
Even if the legislature wanted to delegate this power to the Governor during times of crisis as the Emergency Management Act indicates (Ala. Code § 31-9-13), they lack the Constitutional authority to do so. Any attempt by the Governor to suspend the laws of the state is a violation of Section 21 of the Constitution of Alabama.
The Governor may claim that she is not guilty of these violations by shifting the blame to Dr. Harris, the State Health Officer. Ivey may argue that the rules which she has ordered to be enforced have all come from Dr. Harris in his role as the State Health Officer and thus are not violations of Section 43 of the Constitution of Alabama. However, Dr. Harris has only been given administrative authority. The Code of Alabama declares that the State Health Officer shall have the authority:
“To adopt and promulgate rules and regulations providing proper methods and details for administering the health and quarantine laws of the state, which rules and regulations shall have the force and effect of law.”
Dr. Harris’ authority extends only to the administering of existing health and quarantine laws. He has not been given the authority to construct new laws requiring the residents of the state to wear masks or refrain from public gatherings or anything else that has not been expressly dictated by the legislature.
This restriction on the authority of the State Health Officer is fully supported by the findings of our courts. As our supreme court has pointed out:
“the doctrine of separation of powers does not prohibit the Legislature's delegating the power to execute and administer the laws, so long as the delegation carries reasonably clear standards governing the execution and administration.” (Folsom v. Wynn, 631 So. 2d 890)
Our legislature has given very clear standards for the administration that they delegated to the State Health Officer. Those standards can be found in § 22-11A-1 through § 22-11A-42. There is nothing in these sections which authorizes the orders that Dr. Harris has put in place and Ivey has enforced. Dr. Harris claims that:
“Ala. Code § 22-2-2 authorizes the State Health Officer, on behalf of the State Board of Health, to direct that conditions prejudicial to health in public places within the State be abated.”
But he neglects to note that § 22-2-2 limits the actions which he may take in pursuance of that abatement to the “proper steps” which are to be “taken by the proper authorities.” § 22-2-2 does not grant the State Health Officer carte blanche authority to enact whatever rules and orders he feels may be necessary to abate unhealthy conditions in the state. He is limited to taking the “proper steps” which are outlined in § 22-11A-1 through § 22-11A-42.
§ 22-2-2 further limits the actions of the State Health Officer by indicating that he can only take the authorized actions after an inspection of the facility or facilities in which conditions prejudicial to health are likely to be found. It is only after such conditions are found to exist that the State Health Officer is authorized to take the “proper steps” to abate those conditions. There is nothing in § 22-2-2 which authorizes actions by the State Health Officer in the absence of such an inspection.
For these reasons and others, all of Governor Ivey’s coronavirus proclamations should be declared unconstitutional. By issuing these proclamations, she has overstepped the constitutional bounds of her authority through the assumption of the legislative power to make laws and the assumption of the power to suspend laws. The people of Alabama should rise up against these unlawful acts by launching a barrage of lawsuits demanding injunctions against the Governor’s commands. Even if you think that masks, social distancing, business closures, and restricted gatherings are a good way to fight against the virus, you should still want these measures to be implemented in a manner that is consistent with the law.
Bill Fortenberry is a Christian philosopher and historian in Birmingham, AL. Bill's work has been cited in several legal journals, and he has appeared as a guest on shows including The Dr. Gina Show, The Michael Hart Show, and Real Science Radio.
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