Plugging the Loophole – Stopping Oregon Executive Branch Overreach
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Over the last two years in Oregon, we’ve experienced (to the great detriment of our state) the overreach of Oregon’s Governor and executive branch, and the unconstitutional abuse of power. Most of the problems raging in our state can arguably be traced to a root cause of the Governor’s mandates and executive orders, which, in total, equate to the worst public policy decisions and public health policy decisions in Oregon history. In the recent Legislative short session, a new law was narrowly defeated which would have granted the Director of the Oregon Health Authority (a non-elected, appointed bureaucrat) the power to declare a public health emergency at his/her sole discretion. This is clearly a bad idea, but it’s indicative of the executive branch’s quest for power.
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Most of the problems raging in our state can arguably be traced to a root cause of the Governor’s mandates and executive orders, which, in total, equate to the worst public policy decisions and public health policy decisions in Oregon history. |
It’s imperative we return to the balance of power prescribed in the US and Oregon Constitutions.
I’m running for Oregon State Representative. A legislator’s job is not to just make new laws – arguably we probably have way too many of them – but also to fix broken laws and bad public policy. The most important law to fix is “ORS 401.168 Governor’s powers during a state of emergency.”
For those who want to cut to the chase, here’s what I want to work to achieve as your state representative:
ORS 401.168 should be amended to expressly implement time limits on the declaration of a state of general emergency, just as is done in ORS 433.441. This should be of bipartisan appeal, because governors come and go, and the rights asserted by today’s Democrat Governor might not be appreciated by Democrats if a Republican Governor was in office. In fact, I have heard campaign promises from a Republican candidate for Governor to “take a page from the Democrat playbook” and use broad executive emergency powers to change things the way the candidate desires. Whether you’re a Democrat or Republican, the loophole needs to be plugged, for the benefit of all Oregonians.
For those who want a more comprehensive understanding of the issue, here’s a more detailed explanation.
The overarching law ORS 401 law was originally passed in 1949 and granted the Governor broad powers in the event of a general emergency, which was defined as:
401.025 Definitions for ORS chapter 401. As used in this chapter: “Emergency” means a human created or natural event or circumstance that causes or threatens widespread loss of life, injury to person or property, human suffering or financial loss, including but not limited to: Fire, wildfire, explosion, flood, severe weather, landslides or mud slides, drought, earthquake, volcanic activity, tsunamis or other oceanic phenomena, spills or releases of oil or hazardous material as defined in ORS 466.605, contamination, utility or transportation emergencies, disease, blight, infestation, civil disturbance, riot, sabotage, acts of terrorism and war;
Although making reference to “disease” and being broadly defined by the “not limited to” clause, the circumstances for which this provision was originally envisioned and intended to apply are clear. Thus the recent passage of 433.441 Declaration of public health emergency.
The 1949 law provides for no specific time limit; however, it does refer to and rely on the emergency powers granted the governor in the Oregon Constitution, which are subject to time limits. More on this later.
A new law was passed in 2007 to specifically address public health emergencies. 433.441 Declaration of public health emergency. (1) Upon the occurrence of a public health emergency, the Governor may declare a state of public health emergency as authorized by ORS 433.441 to 433.452 to protect the public health. Nothing in ORS 433.441 to 433.452 limits the authority of the Governor to declare a state of emergency under ORS 401.165. If a state of emergency is declared as authorized under ORS 401.165, the Governor may implement any action authorized by ORS 433.441 to 433.452. A declaration of a state of public health emergency expires when terminated by a declaration of the Governor or no more than 14 days after the date the public health emergency is declared unless the Governor expressly extends the declaration for an additional 14-day period.
Therefore, the Governor can choose to declare a general state of emergency, not just a public health emergency. Therefore, despite the fact that the COVID pandemic was clearly a public health emergency, Governor Brown declared a general emergency, and thus claimed (and continues to claim) that her declared state of emergency is therefore indefinite, and that it will only be terminated upon her decision to do so (unless terminated by a joint resolution of the legislature).
To declare the general state of emergency Governor Brown relied on ORS 401.165 and 401.168, which read in part:
“401.165. (1) The Governor may declare a state of emergency by proclamation at the request of a county governing body or after determining that an emergency has occurred or is imminent.”
401.168 Governor’s powers during state of emergency; suspension of agency rules. During a state of emergency, the Governor has complete authority over all executive agencies of state government and the right to exercise, within the area designated in the proclamation, all police powers vested in the state by the Oregon Constitution in order to effectuate the purposes of this chapter. During a state of emergency, the Governor has authority to direct any agencies in the state government to utilize and employ state personnel, equipment and facilities for the performance of any activities designed to prevent or alleviate actual or threatened damage due to the emergency, and may direct the agencies to provide supplemental services and equipment to local governments to restore any services in order to provide for the health and safety of the citizens of the affected area.
I’m running for Oregon State Representative. A legislator’s job is not to just make new laws – arguably we probably have way too many of them – but also to fix broken laws and bad public policy. The most important law to fix is “ORS 401.168 Governor’s powers during a state of emergency.”
For those who want to cut to the chase, here’s what I want to work to achieve as your state representative:
ORS 401.168 should be amended to expressly implement time limits on the declaration of a state of general emergency, just as is done in ORS 433.441. This should be of bipartisan appeal, because governors come and go, and the rights asserted by today’s Democrat Governor might not be appreciated by Democrats if a Republican Governor was in office. In fact, I have heard campaign promises from a Republican candidate for Governor to “take a page from the Democrat playbook” and use broad executive emergency powers to change things the way the candidate desires. Whether you’re a Democrat or Republican, the loophole needs to be plugged, for the benefit of all Oregonians.
For those who want a more comprehensive understanding of the issue, here’s a more detailed explanation.
The overarching law ORS 401 law was originally passed in 1949 and granted the Governor broad powers in the event of a general emergency, which was defined as:
401.025 Definitions for ORS chapter 401. As used in this chapter: “Emergency” means a human created or natural event or circumstance that causes or threatens widespread loss of life, injury to person or property, human suffering or financial loss, including but not limited to: Fire, wildfire, explosion, flood, severe weather, landslides or mud slides, drought, earthquake, volcanic activity, tsunamis or other oceanic phenomena, spills or releases of oil or hazardous material as defined in ORS 466.605, contamination, utility or transportation emergencies, disease, blight, infestation, civil disturbance, riot, sabotage, acts of terrorism and war;
Although making reference to “disease” and being broadly defined by the “not limited to” clause, the circumstances for which this provision was originally envisioned and intended to apply are clear. Thus the recent passage of 433.441 Declaration of public health emergency.
The 1949 law provides for no specific time limit; however, it does refer to and rely on the emergency powers granted the governor in the Oregon Constitution, which are subject to time limits. More on this later.
A new law was passed in 2007 to specifically address public health emergencies. 433.441 Declaration of public health emergency. (1) Upon the occurrence of a public health emergency, the Governor may declare a state of public health emergency as authorized by ORS 433.441 to 433.452 to protect the public health. Nothing in ORS 433.441 to 433.452 limits the authority of the Governor to declare a state of emergency under ORS 401.165. If a state of emergency is declared as authorized under ORS 401.165, the Governor may implement any action authorized by ORS 433.441 to 433.452. A declaration of a state of public health emergency expires when terminated by a declaration of the Governor or no more than 14 days after the date the public health emergency is declared unless the Governor expressly extends the declaration for an additional 14-day period.
Therefore, the Governor can choose to declare a general state of emergency, not just a public health emergency. Therefore, despite the fact that the COVID pandemic was clearly a public health emergency, Governor Brown declared a general emergency, and thus claimed (and continues to claim) that her declared state of emergency is therefore indefinite, and that it will only be terminated upon her decision to do so (unless terminated by a joint resolution of the legislature).
To declare the general state of emergency Governor Brown relied on ORS 401.165 and 401.168, which read in part:
“401.165. (1) The Governor may declare a state of emergency by proclamation at the request of a county governing body or after determining that an emergency has occurred or is imminent.”
401.168 Governor’s powers during state of emergency; suspension of agency rules. During a state of emergency, the Governor has complete authority over all executive agencies of state government and the right to exercise, within the area designated in the proclamation, all police powers vested in the state by the Oregon Constitution in order to effectuate the purposes of this chapter. During a state of emergency, the Governor has authority to direct any agencies in the state government to utilize and employ state personnel, equipment and facilities for the performance of any activities designed to prevent or alleviate actual or threatened damage due to the emergency, and may direct the agencies to provide supplemental services and equipment to local governments to restore any services in order to provide for the health and safety of the citizens of the affected area.
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Critique of the Governor’s Declaration.
1. American Values. Regardless of the Governor’s usage of ORS 401 to unilaterally impose her will on the state, America is not a monarchy or a dictatorship. It is intended to be a Constitutional Republic with a balance of powers between the legislature, the governor and the judicial system. People do not flee despotic regimes to come to America to enter another dictatorship. |
America is not a monarchy or a dictatorship. It is intended to be a Constitutional Republic with a balance of powers between the legislature, the governor and the judicial system. |
The whole world knows America is intended to be a free country that is governed according to the Federal and State Constitutions, not by one person operating unilaterally. That’s why you don’t have to be a legal genius or a Constitutional scholar to know that the Governor’s actions are simply wrong, and not in the spirit of our form of government. Everyone knows that in America, one person is not to have unlimited power to do anything to anyone anywhere for an unlimited length of time for whatever reason they declare – including a President or a Governor. The idea is absurd.
2. Common Sense. Any common-sense reader of the law would easily determine that the appropriate code section for a public health emergency is the one entitled 433.441 Declaration of public health emergency. ORS 433, which was passed only a few years ago, clearly indicates the intent of the statute to have a time limit. Governor Brown’s choice of the ORS 401 general state of emergency provision was not accidental and thus is suspect in intent in her claim that it gives her indefinite emergency powers.
3. Oregon Constitution. State laws are subordinate to the Oregon and Federal Constitutions. When state laws violate individual rights under the Constitutions, they are invalid. This has clearly happened (and continues to happen) under the mandates of the Oregon Governor, thus the mandates are un-Constitutional and invalid, as affirmed by the US Supreme Court in regard to the un-Constitutional closure of churches. Expressly, the mandates violate in one way or another the following provisions of the Oregon Constitution:
(3) The determination by the Legislative Assembly required by subsection (1) of this section or an extension described in subsection (2) of this section shall take the form of a bill. A bill that extends the operation of sections 1 to 5 of this Article shall establish a date upon which the provisions of sections 1 to 5 of this Article shall cease to be operative. A bill described in this subsection shall be presented to the Governor for action in accordance with section 15b, Article V of this Constitution.
(4) A bill described in subsection (3) of this section may include any provisions the Legislative Assembly considers necessary to provide an orderly transition to compliance with the requirements of this Constitution that have been overridden under this Article because of the Governor's declaration of a catastrophic disaster.
(5) The Governor may not invoke the provisions of sections 1 to 5 of this Article more than one time with respect to the same catastrophic disaster. A determination under subsection (1) of this section or an extension described in subsection (2) of this section that establishes a date upon which the provisions of sections 1 to 5 of this Article shall cease to be operative does not prevent invoking the provisions of sections 1 to 5 of this Article in response to a new declaration by the Governor that a different catastrophic disaster has occurred. [Created through H.J.R. 7, 2011, and adopted by the people Nov. 6, 2012]
Therefore, the Governor’s declaration of emergency and exercise of police referred to in ORS 401.168 are invalid, because they are subordinate, first of all to the Oregon Bill of Rights, and secondly to the time limitations and provisions of Article X of the Oregon Constitution (which are the only police powers referred to in the Constitution).
5. Plugging the Loophole. Despite the above, the Governor has found an arguable loophole in OR 401.168 on which she is relying, since the provision does not have an explicit time limit, but only the time limit implemented by reference to the Constitution. The Constitutional cross-reference takes some digging to understand. Plugging the loophole by means of a lawsuit seeking proper interpretation in a liberal Oregon court system is unlikely to result in success. Fortunately, there is a simple way to fix the problem by legislative act.
ORS 401.168 should be amended to expressly implement time limits on the declaration of a state of general emergency, just as is done in ORS 433.441. This should be of bipartisan appeal, because governors come and go, and the rights asserted by today’s Democrat Governor might not be appreciated by Democrats if a Republican Governor was in office. The loophole needs to be plugged, for the benefit of all Oregonians.
For example, the Governor could be given the emergency powers under ORS 401.168 for 30 days. Then extension would have to be sought with the Legislature. A 30-day extension would require a majority vote of the Legislature, or else the Governor’s emergency powers would cease. After 60 days of emergency declaration, a 2/3 majority vote of the Legislature would be required to extend another 30 days, or else the Governor’s emergency powers would cease. Following that, a 75/25 majority vote would be required to extend the emergency to a total of 120 days. At that point, the Governor’s emergency powers would cease.
Loophole closed. Problem solved. This is the purpose of balance of powers.
2. Common Sense. Any common-sense reader of the law would easily determine that the appropriate code section for a public health emergency is the one entitled 433.441 Declaration of public health emergency. ORS 433, which was passed only a few years ago, clearly indicates the intent of the statute to have a time limit. Governor Brown’s choice of the ORS 401 general state of emergency provision was not accidental and thus is suspect in intent in her claim that it gives her indefinite emergency powers.
3. Oregon Constitution. State laws are subordinate to the Oregon and Federal Constitutions. When state laws violate individual rights under the Constitutions, they are invalid. This has clearly happened (and continues to happen) under the mandates of the Oregon Governor, thus the mandates are un-Constitutional and invalid, as affirmed by the US Supreme Court in regard to the un-Constitutional closure of churches. Expressly, the mandates violate in one way or another the following provisions of the Oregon Constitution:
- Section 1. Natural rights inherent in people. We declare that all men, when they form a social compact are equal in right: that all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; and they have at all times a right to alter, reform, or abolish the government in such manner as they may think proper.
- Section 2. Freedom of worship. All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their own consciences.
- Section 3. Freedom of religious opinion. No law shall in any case whatever control the free exercise, and enjoyment of religious opinions, or interfere with the rights of conscience.
- Section 8. Freedom of speech and press. No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.--
- Section 9. Unreasonable searches or seizures. No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.--
- Section 10. Administration of justice. No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation.
- Section 18. Private property or services taken for public use. Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation; nor except in the case of the state, without such compensation first assessed and tendered; provided, that the use of all roads, ways and waterways necessary to promote the transportation of the raw products of mine or farm or forest or water for beneficial use or drainage is necessary to the development and welfare of the state and is declared a public use.
- Section 19. Imprisonment for debt. There shall be no imprisonment for debt, except in case of fraud or absconding debtors.
- Section 20. Equality of privileges and immunities of citizens. No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.
- Section 22. Suspension of operation of laws. The operation of the laws shall never be suspended, except by the Authority of the Legislative Assembly.
- Section 6. Termination of operation of this Article; extension by Legislative Assembly; transition provisions; limitation on power of Governor to invoke this Article. (1) Except as provided in subsection (2) of this section, the provisions of sections 1 to 5 of this Article, once invoked, shall cease to be operative not later than 30 days following the date the Governor invoked the provisions of sections 1 to 5 of this Article, or on an earlier date recommended by the Governor and determined by the Legislative Assembly. The Governor may not recommend a date under this subsection unless the Governor finds and declares that the immediate response to the catastrophic disaster has ended.
(3) The determination by the Legislative Assembly required by subsection (1) of this section or an extension described in subsection (2) of this section shall take the form of a bill. A bill that extends the operation of sections 1 to 5 of this Article shall establish a date upon which the provisions of sections 1 to 5 of this Article shall cease to be operative. A bill described in this subsection shall be presented to the Governor for action in accordance with section 15b, Article V of this Constitution.
(4) A bill described in subsection (3) of this section may include any provisions the Legislative Assembly considers necessary to provide an orderly transition to compliance with the requirements of this Constitution that have been overridden under this Article because of the Governor's declaration of a catastrophic disaster.
(5) The Governor may not invoke the provisions of sections 1 to 5 of this Article more than one time with respect to the same catastrophic disaster. A determination under subsection (1) of this section or an extension described in subsection (2) of this section that establishes a date upon which the provisions of sections 1 to 5 of this Article shall cease to be operative does not prevent invoking the provisions of sections 1 to 5 of this Article in response to a new declaration by the Governor that a different catastrophic disaster has occurred. [Created through H.J.R. 7, 2011, and adopted by the people Nov. 6, 2012]
Therefore, the Governor’s declaration of emergency and exercise of police referred to in ORS 401.168 are invalid, because they are subordinate, first of all to the Oregon Bill of Rights, and secondly to the time limitations and provisions of Article X of the Oregon Constitution (which are the only police powers referred to in the Constitution).
5. Plugging the Loophole. Despite the above, the Governor has found an arguable loophole in OR 401.168 on which she is relying, since the provision does not have an explicit time limit, but only the time limit implemented by reference to the Constitution. The Constitutional cross-reference takes some digging to understand. Plugging the loophole by means of a lawsuit seeking proper interpretation in a liberal Oregon court system is unlikely to result in success. Fortunately, there is a simple way to fix the problem by legislative act.
ORS 401.168 should be amended to expressly implement time limits on the declaration of a state of general emergency, just as is done in ORS 433.441. This should be of bipartisan appeal, because governors come and go, and the rights asserted by today’s Democrat Governor might not be appreciated by Democrats if a Republican Governor was in office. The loophole needs to be plugged, for the benefit of all Oregonians.
For example, the Governor could be given the emergency powers under ORS 401.168 for 30 days. Then extension would have to be sought with the Legislature. A 30-day extension would require a majority vote of the Legislature, or else the Governor’s emergency powers would cease. After 60 days of emergency declaration, a 2/3 majority vote of the Legislature would be required to extend another 30 days, or else the Governor’s emergency powers would cease. Following that, a 75/25 majority vote would be required to extend the emergency to a total of 120 days. At that point, the Governor’s emergency powers would cease.
Loophole closed. Problem solved. This is the purpose of balance of powers.
This is a truly scary Oregon law that grants administrative rights to quarantine a person or groups of people at the discretion of the Governor’s administrative agents. This should be chilling to any reader of history, and limitations need to be placed on this provision immediately. |
6. Sidenote on Quarantine Laws. Closing the loophole also minimizes concern over the broad and sweeping provisions of 433.121 – 433.150 Emergency administrative order for isolation or quarantine. This is a truly scary Oregon law that grants administrative rights to quarantine a person or groups of people at the discretion of the Governor’s administrative agents. This should be chilling to any reader of history, and limitations need to be placed on this provision immediately.
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