Yesterday, a lawsuit against Ivey's mask order was dismissed and subsequently appealed. Ivey attempted several interesting twists of the law in her defense, and one such twist that I find particularly disturbing is her claim that the Emergency Management Act gives her complete authority over the "conduct of civilians."
Ivey claimed that her order is:
"a 'necessary order' that 'look[s] to the direction or control of . . . the conduct of civilians and . . . public meetings or gatherings . . . .,' Ala. Code § 31-9-6(4), by requiring citizens to wear facemasks under certain circumstances."
The section of code which Ivey is very selectively quoting here states that the Governor is authorized during an emergency:
"To make, amend, and rescind the necessary orders, rules, and regulations looking to the direction or control of practice blackouts, air raid drills, mobilization of emergency management forces, and other tests and exercises, warnings, and signals for DRILLS OR ATTACKS, the mechanical devices to be used in connection therewith, the effective screening or extinguishing of all lights and lighting devices and appliances, the conduct of civilians and the movement or cessation of movement of pedestrians and vehicular traffic, public meetings or gatherings, the evacuation and reception of civilian population, and shutting off water mains, gas mains, electric power connections, and the suspension of all other public utilities, during, prior and subsequent to DRILLS OR ATTACKS." (emphasis added)
Ivey quoted this section more fully in another part of her defense, but even then, she only quoted is as:
"To make, amend, and rescind the necessary orders, rules, and regulations looking to the direction or control of . . . the conduct of civilians and the movement or cessation of movement of pedestrians and vehicular traffic, public meetings or gatherings."
Do you see the difference? Do you see the crucial phrase that Ivey has left out? You should. I just put it in all caps for you. The power that is granted to the Governor by this paragraph ONLY applies in cases of DRILLS OR ATTACKS.
This paragraph does not apply to the coronavirus because the virus is not an attack. The term "attack" is defined in Alabama law as:
"Any action or series of actions taken by an enemy of the United States resulting in substantial damage or injury to persons or property in this state whether through sabotage, bombs, missiles, shellfire or atomic, radiological, chemical, bacteriological or biological means or other weapons or methods." (Ala. Code § 29-3-3)
The virus is not the result of an attack by any of our enemies, and Ivey does not claim that it is. She simply left out every reference to "drills or attacks" when she quoted this section of the Code of Alabama. But those words were included for a reason. If you take those words out of that section, then the Governor will amass an unprecedented amount of power.
If these words are ignored, then the Governor can assume total and absolute control of the populace during ANY declared state of emergency. That may not seem like a very big deal until you realize that the Governor typically issues multiple state of emergency declarations EVERY YEAR. To grant the Governor the authority to "control the conduct of civilians" every time that he or she issues such a declaration effectively grants the Governor the authority to become a tyrant whenever he or she feels like doing so.
That would be a ludicrous interpretation of the law, and it is definitely NOT what the legislature intended when they passed the Emergency Management Act. The fact that Ivey has resorted to such ridiculous claims reveals the weakness of her argument. There is literally NOTHING in Alabama's law which authorizes Ivey to institute a statewide mask mandate, and she knows it. But that hasn't stopped her from claiming tyrannical power anyway. I'd hate to find out just how far she thinks that she is authorized to extend that power.
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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