There are many rumors flowing around about potential executive orders that will restrict travel or business operations. I like to know the extent of laws and consequences. Despite hysteria, I do not believe one is going to be arrested for going to Food Lion, nor for operating one's business. Ignorance of the law just creates more rumor and social unease. Given that there are also many rumors regarding the “legality” of regular activities, I thought I would embark on a discussion about the limitations of executive orders.
First, in my opinion, there is no authority in Virginia for a local executive such as the Chairman of the Board of Supervisors or a Town or City Mayor to issue an executive order. That authority has not been designated them by the General Assembly and any such acts would be void under what is referred to as Dillon’s Rule.
Executive orders are authorized in Virginia only by statute. Virginia code section 44-146.17 authorize emergency executive orders and can make violation of them a class one misdemeanor if that penalty is placed in the executive order. However the discussion does not end here.
To date, Governor Northam has only issued two Executive Orders, EO-51 and EO-51 Amended yesterday. These are found here:
If you read the Executive Orders, there is no attempt at restricting travel or closing businesses. Nor is there a prohibition on gatherings of more than 10 people anywhere other than restaurants, fitness centers, and theaters.
So the next question is whether this is valid. What is a valid executive order? It appears based on Virginia law that a valid executive order is only one in which the executive is taking extraordinary measures to enforce current law. I reference Virginia attorney General opinion 05–94. This opinion can be found at this link:￼￼￼https://www.law.columbia.edu/…/va._atty_gen._op._no._05-094…
The opinion, and others similar to it, appear to limit executive orders to those enforcing existing law, and do not permit the temporary creation of new law.
Moreover, most of the opinions on Executive Orders in the case of "Emergencies" derive from an Attorney General Opinion from 1945 which was written with regard to focusing on the Governor's union or strike busting authority to compel the "unorganized militia" (identified as all able-bodied men between the ages of 18 and 55) to step in and provide labor to keep utilities and railroads operating. There really is no precedent authorizing state-wide restrictions on hours of operation for businesses, etc. Again just more information to foster one's debate and understanding.
It gets more complicated so I don’t want to appear like the issue is cut and dry. Under a 2002 Atty Gen Opinion (2002 Va AG Lexis 74) it was held that the Governor could enforce a quarantine over a specific area pursuant to powers identified in the Commonwealth of Virginia Emergency Services and Disaster Law of 2000. However is does not appear that the ability to create or identify an disaster area contemplated a quarantine over the entire state.
The only opinions seem to deal with compelling medical personnel to act within an area. Not a moratorium on all businesses.
In the amended Executive Order issued on March 20, 2020, the Governor was very careful to limit the Executive Order to the enforcement of current law as found in Virginia Code § 35.1-1 et seq. which govern the operations of hotels, restaurants, summer camps, and campgrounds. It is interesting to note that these statutes do not authorize the regulations of fitness centers or theaters, and to that extent, the Executive Order maybe, and is probably void, as it is a narrowly tailored Executive Order. § 35.1-10 does permit the Commissioner of Health to immediate close a hotel, restaurant, summer camp, or campground to prevent the spread of preventable diseases. So to that extent it appears that the Governor may issue an Executive Order creating conditions short of closing a restaurant for that purpose. Thus, limiting restaurants to 10 dining-in patrons appears to be legal. So far, I can find no authority to limit theater patronage or fitness center patronage and no authority to do so was listed in the Executive Order.
Va. Code § 32.1-13 does authorize the State Board of Health to “make separate orders and regulations to meet any emergency, not provided for by general regulations, for the purpose of suppressing nuisances dangerous to the public health and communicable, contagious and infectious diseases and other dangers to the public life and health.” However, this appears to only apply to regulations for the operation of its department. See Va. Code § 32.1-2. Further, there is no authority under Va. Code § 32.1-19, which lists the duties of the Board of Health, to create regulations for the operations of businesses generally. As identified below, there is no authority for the Governor to empower a state agency to create the equivalent of law with regard to discrete sections of the marketplace, such as theaters or fitness centers.
Lastly on this point, the Executive Order addresses Va. Code § 32.1-27 with regard to penalties for violations. However, this does not apply to all businesses, only those that can be regulated by the Board of Health, such as restaurants, hotels, summer camps, and campgrounds. It is unclear how the Governor can utilize this statute as a basis of regulating activity at fitness centers or theaters.
In sum, it appears that the Executive Order as amended March 20, 2020 is a limited order that can regulate the operation of restaurants. However, its legal applicability to fitness centers and theaters is doubtful and appears to be a stretch of executive authority. Nevertheless, individual fitness cneters and theaters will likely comply.
HOWEVER, THERE IS NO MORATORIUM ON TRAVEL, GOING TO THE GROCERY STORE, MEETING WITH MORE THAN 10 PEOPLE OUTSIDE OF A RESTAURANT, GOING TO AN OFFICE BUILDING, VISITING A DOCTOR, ETC. ALTHOUGH YOU PROABLY SHOULD STILL SELF-QUARANTINE, YOU DO NOT FACE CIVIL OR CRIMINAL PENALTIES FOR ENGAGING IN THOSE ACTIVITIES.
While we all want to come together as a community, we also need to wary of governmental overreach. Suggested policies and requests for cooperation are fine. Suggested actions such as curfew or restricting travel are in my mind illegal, although well-intentioned.
My position is that government overreach, even well-intentioned overreach, occurs by adoption of the maxim “it is better to beg forgiveness that to ask permission.” Because there are no playbooks, government may push extreme measures though patently illegal. Many will comply because of a false sense of obligation or security. Many will comply with because of a twisted tautology (“I have nothing to hide, or we all have to sacrifice our liberty in these times). Many will adopt utilitarian values (it’s for the common good) and abandon the sanctity of individual freedom that is the bedrock of our society. I think it important to be constantly pushing back, even in small ways. You can agree to take action (social distancing) but only with the insistence that it is voluntary for example.
Every time those instances of martial law occurred they were rebuked and have been commented on as being repugnant to the American way. The problem is courts take time and the wheels of justice move slowly.
The one tool we have today that was unknown in prior generations is the internet. Search for emergency executive authority in your state. Then see how it’s been applied. It allows one to argue against tyranny.
More importantly, when talking with friends, don’t ever let a question “are we allowed to...” go unanswered or answered in any form other than the affirmative. Take exception to “allow” because implies someone has authority to restrict action. Freedom requires constant vigilance.