I’ve been a critic of Gov. Roy Cooper’s COVID-19 lockdown orders from the very start. I’ve argued that the orders are unnecessary, divisive, and counterproductive, and I’ve also argued that — because the governor issued them without first obtaining the concurrence of the Council of State (COS) — the orders are also illegal. I was delighted, therefore, when Lt. Gov. Dan Forest filed a lawsuit on July 1 challenging the legality of Cooper’s lockdown orders, and I was disappointed when he dismissed that lawsuit six weeks later.
Regarding his decision to drop the case, Forest said, “If y’all want your freedoms back you’ll have to make your voices heard in November.” The implication was that if he became the next governor, he would rescind any lockdown orders that remained in place and take a less dictatorial approach to COVID-19 going forward, and I expect he would have kept those promises if he’d been elected. Unfortunately, however, he wasn’t. Cooper will continue to occupy the Governor’s mansion, and he’s made it very clear he intends to go on issuing lockdown orders without COS concurrence. Which raises a question for those of us who still object to those orders: what can we do about them now?
One thing that someone could do is file another legal challenge. Despite its ignominious conclusion, Forest’s complaint had a lot of merit.
The issue in Forest v. Cooper was how to reconcile two seemingly inconsistent sections of the Emergency Management Act. Section 166A-19.30(b) gives the governor a broad range of extraordinary emergency powers but specifies that he may only exercise those powers “with the concurrence of the Council of State.” Section 19.30(c) authorizes the Governor to exercise a similarly broad range of powers “if [he] determines that local control of the emergency is insufficient to assure adequate protection for lives and property.” Unlike 19.30(b), 19.30(c) says nothing about COS concurrence.
Back in March, Cooper made a cursory attempt to obtain Council of State concurrence before issuing his first statewide lockdown order, but when that attempt failed he went ahead and issued it anyway. Ever since, he’s been issuing and enforcing statewide lockdown orders without even consulting the COS.
Forest challenged those orders, arguing:
Local governments have authority to manage local emergencies. When local governments cannot sufficiently manage localized or regionalized emergencies, the Governor may manage those emergencies temporarily as if he were a local governmental body. When a statewide emergency requires extreme gubernatorial action, those actions require Council of State concurrence.
Cooper responded by repeating his claim that 19.30(c) is an independent grant of authority that authorizes him to impose statewide emergency orders without COS concurrence whenever he determines that local control is insufficient to protect lives and property.
A legal question deferred
Because Forest had requested a temporary restraining order (later converted to a request for a preliminary injunction), Wake County Superior Court Judge James L. Gale needed to decide whether Forest was likely to succeed on the merits when the case eventually came to trial. To make that preliminary assessment he relied on a canon of statutory construction that encourages courts to avoid interpretations that result in surplusage. In a classic formulation, the surplusage canon states, “If possible, every word and every provision is to be given effect. None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.”
Gale applied that canon to two parts of 19.30(c). The introductory phrase “In addition to any other powers conferred upon the Governor by law,” and the phrase “in the governor’s discretion” which appears within the body of the text. If the powers granted by 19.30(c) were subject to the COS concurrence, said Gale, these phrases would be mere surplusage, and he therefore held that Forest’s entire complaint was unlikely to succeed on the merits and refused to grant a preliminary injunction.
Now it’s far from clear that Gale applied the surplusage canon correctly in Forest v. Cooper. Even if it doesn’t give him the power to impose statewide orders without COS concurrence, granting the governor the authority to step into the role of a local authority under certain circumstances is an addition to other powers conferred by law, and it’s hardly surplusage to say so. Much the same thing can be said about allowing the governor the power to exercise his own discretion about how he exercises that authority.
More importantly, if Gale had applied the surplusage canon to the Emergency Management Act as an integrated statute, he would have construed it very differently. On its own, local control will always be insufficient to assure adequate protection for lives and property in a statewide emergency. If the governor can avoid the COS concurrence requirement under 19.30(b) simply by making a pro-forma claim of insufficient local control under 19.30(b), then the former is itself surplusage — a mere form of words of no consequence that imposes no effective check on gubernatorial power at all.
It’s possible Gale would have come to that conclusion and ruled in Forest’s favor if he had been given the opportunity to consider the complaint on its merits. Even if he hadn’t, it’s possible the NC Supreme Court would have eventually reached that conclusion. The fact that Forest dismissed his case means the only way to find out how the courts would rule on the issue would be for someone else to file a similar challenge and persevere until a final decision has been rendered on the merits.
I hope someone does file such a challenge, and I hope it succeeds. But I don’t think it would be prudent to simply wait and hope that happens. With Forest out of the picture, and Cooper installed as governor for another four years, what I said about Cooper’s shutdown orders in a previous Legal Update is even more relevant now than when I originally said it back in May:
The Emergency Management Act requires concurrence by the Council of State for a reason. Even in an emergency, we don’t want the governor to wield unchecked, unlimited, and near-dictatorial powers. Moreover (and this is particularly relevant in the present circumstances), even in an emergency we can’t expect the public to accept extreme measures and make major sacrifices unless they feel sure that their concerns and interests were taken into consideration when the decision to impose those measures was made. Because it is made up of ten independently elected officials, the Council of State is, by its nature, less partisan and more representative than the office of the governor, and, in a time of emergency, representative, non-partisan decision-making is exactly what is needed to win the public’s confidence.
If the COVID-19 crisis persists or worsens in the coming weeks and months, we are going to need all the representative, non-partisan leadership and all the public confidence in government we can get. And even if the crisis gradually diminishes and eventually fades away—as we must all hope and pray it will—we need to ensure this kind of abuse of power never happens again. Either way, the General Assembly’s task is clear. It must amend the Emergency Management Act to provide that: (1) a determination that local control is inadequate simply means the Governor may assume the emergency powers otherwise delegated to the relevant local authority and nothing more, and (2), regardless of what he may determine about the adequacy of local control, the Governor may never impose sweeping, statewide lockdowns or other extreme emergency measures without Council of State concurrence.
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