Move on to curb governor’s emergency powers

Move on to curb governor’s emergency powers

Gov. Doug Ducey hosts a panel of Republicans at the Republican Governor’s Association conference November 18, 2021, at the Biltmore Hotel in Phoenix. (Photo by Nick Phillips/Arizona Capitol Times)

Two Republican lawmakers are moving to trim the powers of government during an emergency. 

Rep. Mark Finchem of Oro Valley wants colleagues to rescind statutes that allow the governor to mandate vaccinations. 

That’s not something Gov. Doug Ducey — or for that matter, any governor in recent history — has done. Finchem told Capitol Media Services, though, that just having such laws on the books is dangerous. 

Mark Finchem

“Do you think the government should have the power to force you to take any ‘medication’ against your will?” he asked. 

But Sen. Warren Petersen of Gilbert has his eyes on powers that Ducey has, in fact, exercised: Ordering certain businesses shuttered. So he wants to spell out in law that neither Ducey nor any local official has such a right. 

The two measures are expected to be just the tip of a larger debate when the legislature convenes on Jan. 10 about when governors can declare emergencies, what powers they can exercise and, more to the point, how long they can unilaterally keep them in place. 

Right now, there is no limit. In fact, the emergency that Ducey declared in March 2020 is still in effect. 

“If anything’s been clear over the last year and a half, it’s that governors, whether they’re Republican or Democrat, are all too willing to abuse their emergency declaration powers,” said Sen. Michelle Ugenti-Rita, R-Scottsdale. 

She already has introduced SB1009. It would limit emergency declarations to 30 days, with the possibility of three extensions. 

But anything after 120 days would require the concurrence of the legislature. 

Gubernatorial press aide C.J. Karamargin said his boss does not comment on legislative proposals. 

While Ducey has voluntarily rescinded most of the restrictions he imposed in 2020, he retains the right to reimpose them. And it is that list of what the governor can do that is leading to some of what legislators want to debate. 

Warren Petersen

Finchem points out that current law says that, during a state of emergency or war, the governor may mandate treatment or even vaccination of someone who has been exposed — or even may reasonably expected to be exposed — to any highly contagious and highly fatal disease, including smallpox, plague, viral hemorrhagic fever or any diseases with similar transmission characteristics. His HB2022 would repeal that language. 

“No one has the authority to force you to accept something into your body that cannot be reversed,” Finchem said. And he said this is particularly true in situations like Covid where he says “there are other treatments that are more effective,” ones he said “do not change your DNA.” 

Numerous medical sources say there is no evidence that Covid vaccines, which use messenger RNA to trigger an immune response, can alter genes or DNA. 

Rep. Walt Blackman, R-Snowflake, has a related measure which is even broader. His HB2029 seeks to bar state and local governments from requiring someone to be vaccinated against Covid or any variant or to possess any sort of “immunity passport” or other evidence of vaccination or immunity. 

But it goes beyond what government employers can do. The legislation would forbid state and local governments from entering contracts with any company that imposes a vaccine mandate on its own workers, whether there is a declared state of emergency. 

“My goal is more to protect the employees from discrimination for not having the shot or having to carry a passport,” he said. Blackman compared this to the Jim Crow era where there were laws and policies in some states that enforced racial segregation. 

“Folks were discriminated against because of their color,” he said. “I’m saying this is the same thing.” 

Blackman said it is for that reason he wants to expand the protections against mandatory vaccinations to workers at private firms. 

“I don’t believe that we need to fire people from their jobs or hold their jobs over their heads” for refusing to get vaccinated. 

One potential sticking point could be the ban on the state doing business with those firms. 

That might not be a problem in deciding to buy office supplies from a different firm. But it gets trickier when the state is dealing with the bank that handles its checks or the utility that provides electricity or gas. 

“I hope it doesn’t go to that,” Blackman said. But he said he remains steadfast in his belief that no one’s job should be placed at risk for refusing to get inoculated. 

Petersen’s proposal also deals with private business, but in a different way. 

Arizona law allows mayors and the people who chair county boards of supervisors to declare local emergencies. His SB1048 would specifically rescind their ability during such an emergency to order the closing of any business. 

But Petersen said the intent is to limit all levels of government — including the state — from forcing any business to shut down. 

And this isn’t idle speculation. 

Ducey closed all bars and restaurants in March 2020. And that followed decisions already made by the mayors of Tucson and Flagstaff, 

Subsequent orders by the governor shut down gyms, water parks and even tubing along Arizona rivers. Ducey separately banned gathering of more than 50 people, though he exempted churches and political rallies. And swimming pools, including public, at hotels and even semi-private ones at apartment complexes, were limited to no more than 10 guests. 

Petersen said all that is beyond the role of government. 

“People have a fundamental right to work and to earn a living,” he said. 

“It’s entirely possible to stay safe and keep businesses open,” Petersen continued. “And if people feel unsafe going to a business they can choose for themselves to stay away.”