The claims before the OR Supreme Court are remarkably similar to those the WI Supreme Court found compelling. Here's the trial court opinion granting the plaintiffs a preliminary injunction (it was stayed by the state s.ct. pending appeal last night): documentcloud.org/documents/6893…
2/ In both WI and OR, (and many other states) the governor has multiple statutory authorities at her/his disposal to respond to a communicable disease emergency. Some of those authorities are subject to specific time limits, others are not.
3/ These authorities were adopted in multiple waves of emergency preparedness & response reform. E.g., in OR, the emergency response law is from 1949, public health emergency provisions date back to 2003 (w/ later amendments), plus a 2012 "catastrophic disaster" const'l amendment
4/ Each wave of emergency preparedness reform has come w/ a different approach to balancing efficacy & efficiency of the response, respect for civil liberties & deference to legislative vs. executive power.
5/ One important safeguard for civil liberties & democratic accountability is time limits on the use of emergency powers.
6/ In many countries, constitutional provisions allow executives to suspend civil liberties during a crisis, but pursuant to strict time limits.
7/ In the US, rights are NOT suspended--emergency declarations are primarily a tool for delegating powers to the executive (e.g., governors) that would ordinarily be reserved for the legislature. Some (not all) states use statutory time limits to check executive power.
8/ Unlike general emergency response laws, communicable disease control laws are applicable in routine times as well as in emergencies. E.g., local health departments may impose mandatory testing, treatment or quarantine on individuals w/ drug-resistant TB, certain STIs, etc.
9/ Accordingly, these communicable disease control authorities typically do not include time limits on the duration for which the executive branch may use them (though there may be express or implied time limits on the use of quarantine orders against any given individual).
10/ In OR and WI, the governors have used a combination of their time-limited emergency powers and their (not time-limited) communicable disease control powers.
11/ Plaintiffs in both OR & WI (maybe other states I'm not aware of?) argue that once the governor declares an emergency/disaster under the statute/constitutional provision that imposes time limits, those limits apply to all actions taken in response to the emergency/disaster.
12/ The issues raised are adjudicated based on specific provisions that vary from state to state, and judges are supposed to rely on doctrines/state court precedents re: separation of powers and statutory construction that also vary from state to state.
13/ With that caution in mind (that generalizations have limited value when it comes to matters of state law), here's my take: I generally respect the importance of time limits on emergency powers as a check on executive authority. But...
14/ Communicable disease control powers may need to be treated differently b/c of their routine uses. E.g., long after the initial "emergency" phase of covid response has passed, testing/isolating cov2+ individuals/quarantining close contacts may still be necessary.
15/ Key Q, which will be an important subject for the inevitable post-covid wave of reform, is whether widespread social distancing orders shld be authorized only under emergency powers or whether they fall w/in communicable disease control powers like individual quarantine does.
