This morning, I filed a petition for special action in the Supreme Court of Arizona on behalf of 26 small business owners whose bars have been shut down by Governor Ducey’s executive orders. I will link to my briefing for anyone to use. 1/10
This case is based on state, not federal, constitutional law claims, but those claims—violations of the nondelegation doctrine, the state’s privileges or immunities clause, and, relatedly, due process—are broadly applicable. 2/
Here’s how the petition starts: “This case is about whether the citizens of Arizona are governed by laws, or by the whims of one man.” 3/ 
As Justice Douglas said in Youngstown, emergencies “[do] not create power,” but rather “mark[] an occasion when power should be exercised.” 4/
In a nutshell, the statute pursuant to which the Governor issued his orders purport to give him the entire “police power” of the state in the event of an emergency. This is a naked delegation of legislative power. 5/
And that statute, as applied, violates the state’s privileges or immunities clause, which requires equality in the right to pursue a lawful occupation. One business should have the same opportunity to meet sanitary standards as another. 6/
Relatedly, if the Governor is not acting as a legislature, then he is acting as a court in violation of due process by applying the legislature’s broad law to these business owners and depriving them of liberty without any process at all. 7/
Fortunately, the constitutional issues can be “avoided” because the broad statute must be read in light of others that deal specifically with contagious diseases, none of which gives the Governor authority to close down businesses. 8/
To be very clear: this case isn’t about the wisdom of the Governor’s policy. It’s about who gets to decide such question in a government of laws. And the answer is—or at least should be—the state legislators. 9/
Here’s the link to the full petition, which I hope works 10/10: dropbox.com/s/nh7329flq301…
