By Richard Emmons
Gov. Kate Brown ended her two-year long COVID-19 state of emergency on April 1. Her executive orders resulted in the closing of many businesses, job layoffs, school closures, mask mandates, vaccine mandates and more. Her actions even closed many churches on Easter Sunday in 2020.
No governor in Oregon history had assumed and used such sweeping authority over the daily lives of Oregonians.
Many people questioned whether any of these restrictions would stop a virus or reduce the COVID-19 illness. Yet one question remains: “Were Gov. Brown’s executive orders constitutional?”
This article will review applicable sections of the Oregon Constitution including the Oregon Bill of Rights.
You can read the Oregon Constitution here:
An expanded version of this article with excerpts from referenced executive orders can be found here.
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.
How and when did the people of Oregon consent to the closure of beaches, churches, businesses, gyms, tennis courts, public parks, etc.? How does going to church, etc. make someone unsafe? Concerned people can choose to not participate.
Did Gov. Brown’s pandemic response provide you “happiness,” as referenced above? Overall, rising substance abuse, spouse abuse, obesity, and mental illness all reflect that the governor’s response to the COVID-19 pandemic actually made Oregonians unhappy.
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 religeous [sic] opinions, or interfere with the rights of conscience.
Gov. Brown closed churches and later set limitations on in-person worship, at one point limiting services to 25 socially distanced people, regardless of the size of the room.
Further evidence of the governor’s unconstitutional restrictions on worship can be found in the articles written by two local pastors on page 9.
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.[1]
Thankfully, the Eagle was able to launch midway through the two-year long so-called emergency.
Unfortunately, a Dr. Steven LaTulippe had is medical license revoked for not requiring all his patients wear masks. He was also fined $10,000 and his medical clinic closed.
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.[1]
The governor’s definition of essential and nonessential businesses was tilted toward big-box corporations and businesses providing tax revenue to the state. Her dictates did not restrict of the sale of liquor, cannabis and lottery business, all of which generate tax revenue for the State of Oregon.
The OLCC continued to operate its chain of Oregon liquor and spirits stores with the “COVID impact” resulting in a 15.6% sales increase over pre-pandemic levels.
At the same time, it was essentially legal to purchase dangerous narcotics such as heroin, LSD and methamphetamines. It was legal to purchase so-called “Plan B” abortifacients in local drug stores. However, it was illegal for Oregonians to get prescriptions for early treatment COVID-19 medicines such as ivermectin.
Section 22: Suspension of Operation of Laws
The operation of the laws shall never be suspended, except by the Authority of the Legislative Assembly.[1]
As shown above, Brown suspended many sections of the Oregon Constitution in her unilateral response to the pandemic.
At no time did she call upon the Oregon Legislature to pass laws to temporarily suspend existing laws and constitutional rights during the medical emergency.
Section 26: Assemblages of People; Instruction of Representatives; Application to Legislature
No law shall be passed restraining any of the inhabitants of the State from assembling together in a peaceable manner to consult for their common good; nor from instructing their Representatives; nor from applying to the Legislature for redress of greviances [sic].[1
The people of Oregon could not attend legislative sessions in person.
ARTICLE IV: LEGISLATIVE BRANCH
Section 10a. Emergency sessions of the Legislative Assembly.
In the event of an emergency the Legislative Assembly shall be convened by the presiding officers of both Houses at the Capitol of the State at times other than required by section 10 of this Article upon the written request of the majority of the members of each House to commence within five days after receipt of the minimum requisite number of requests.
This did not happen.
ARTICLE V: EXECUTIVE BRANCH
Section 12. Governor may Convene Legislature.
He may on extraordinary occasions convene the Legislative Assembly by proclamation, and shall state to both houses when assembled, the purpose for which they shall have been convened.
The Oregon Constitution allows the governor to convene the Legislature “on extraordinary occasions.” The COVID-19 pandemic was such an occasion.
This lets the people’s representatives vote on whether or not to continue or cease any emergency measures, delegate any response to county commissioners in each county, or delegate specific powers to the governor and the executive branch. The enabling legislation for this should be supported by proven science with data available for public review and medical experts available for cross examination.
ARTICLE X-A: CATASTROPHIC DISASTERS
Section 1. Definitions; Declaration of Catastrophic Disaster; Convening of Legislative Assembly.
(1) As used in this Article, “catastrophic disaster” means a natural or human-caused event that: (a) Results in extraordinary levels of death, injury, property damage or disruption of daily life in this state; and (b) Severely affects the population, infrastructure, environment, economy or government functioning of this state.
(2) As used in this Article, “catastrophic disaster” includes, but is not limited to, any of the following events if the event meets the criteria listed in subsection (1) of this section: (a) Act of terrorism, (b) Earthquake, (c) Flood, (d) Public health emergency, (e) Tsunami, (f) Volcanic eruption, (g) War.
As of March 2020, the COVID-19 pandemic had not yet caused “extraordinary levels of death, injury, property damage or disruption of daily life” in Oregon. Computer models of millions of deaths were only projections of COVID-19 deaths. These computer models were proven unreliable.
(3) The Governor may invoke the provisions of this Article if the Governor finds and declares that a catastrophic disaster has occurred. A finding required by this subsection shall specify the nature of the catastrophic disaster.
(4) At the time the Governor invokes the provisions of this Article under subsection (3) of this section, the Governor shall issue a proclamation convening the Legislative Assembly under section 12, Article V of this Constitution, unless: (a) The Legislative Assembly is in session at the time the catastrophic disaster is declared; or (b) The Legislative Assembly is scheduled to convene in regular session within 30 days after the date the catastrophic disaster is declared.
(5) If the Governor declares that a catastrophic disaster has occurred, the Governor shall manage the immediate response to the disaster. The actions of the Legislative Assembly under sections 3 and 4 of this Article are limited to actions necessary to implement the Governor’s immediate response to the disaster and to actions necessary to aid recovery from the disaster.
The Oregon Constitution provides for Gov. Brown to manage the “immediate response to the disaster” only.
The Legislative Assembly is called to act to implement the governor’s “immediate response to the [COVID-19] disaster and to actions necessary to aid recovery” from COVID-19.
At no time did the Oregon Legislative Assembly pass acts of legislation to manage the COVID-19 state of emergency past the initial 30 days.
Instead, Gov. Brown managed the response to the pandemic through executive orders. This included empowering the Oregon Health Authority to enforce mandates for social distancing, face masks, testing, injections and more. Oregon OSHA cited and fined businesses that did not abide by the COVID-19 guidance. One Grants Pass restaurant, the Gold Miner, was fined thousands of dollars for not abiding by the state mandates. The fine is being appealed. The restaurant is no longer in business.
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.
Gov. Brown’s COVID-19 state of emergency should have been limited to no more than 30 days.
(2) Prior to expiration of the 30-day limit established in subsection (1) of this section, the Legislative Assembly may extend the operation of sections 1 to 5 of this Article beyond the 30-day limit upon the approval of three-fifths of the members of each house who are able to attend a session described in subsection (3) of section 3 of this Article.
The Legislature may extend the state of emergency by passing a bill with a three-fifths majority of those able to attend the session. In case of a deadly pandemic, flood, earthquake, etc. many legislators could not make it to Salem to vote.
The Oregon Constitution does not allow the governor to extend a state of emergency declaration by executive order.
Remember the Critical / Serious / Okay report cards for each county? This was made up by Brown and state employees and implemented without legislative approval.
The Oregon Constitution does not allow the governor to legislate through executive orders during normal times or during emergencies.
During 2020 and 2021, the Oregon Legislature did not extend Brown’s state of emergency related to the pandemic.
(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.
Any bill passed by the Oregon Legislature to extend a state of emergency shall include an end date. The Constitution does not provide for open-ended states of emergency. The Oregon Legislature could extend the state of emergency as needed by passing another law by three-fifths majority.
(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.
The gravity of restricting civil liberties requires a bill passed by a super majority to extend any state of emergency beyond 30 days. Such bills must provide for the return of constitutional rights lost during the state of emergency.
(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.
Gov. Brown declared a 60-day COVID-19 state of emergency on March 8, 2020. According to Executive Order 20-03, there were “14 presumed or confirmed coronavirus cases in Oregon” and 19 deaths in the United States. This did not meet any definition of “extraordinary death or injury.”
In all, Gov. Brown issued 42 COVID-19 related executive orders between March 8, 2020, and Feb. 24, 2022. Her last executive order ended the COVID-19 emergency restrictions effective April 1, 2022. This ended the mask mandates for most Oregonians and the requirement that state employees be vaccinated.
At no time did Speaker Tina Kotek or Senate Majority Leader Peter Courtney call for a legislative action to abide and follow the constitutional process of Section 5.
How do we stop this from happening again?
There will be catastrophic disasters in the future. Steps can be taken now to ensure future governors do not ignore the Oregon Constitution and impose unilateral governing through executive orders.
It’s not enough to remind our state legislators to take the lead in disasters and abide by the Oregon Constitution. In 2022, the Oregon Legislature amended Chapter 401, Emergency Management and Services, to grant the governor even greater authority in times of actual or threatened emergencies.
The Eagle will cover the implications of the revised ORS Chapter 401 in a future article. Interested readers are encouraged to read ORS 401 to learn more.
Warning: ORS 401 is over 36,000 words. In comparison, the Declaration of Independence is 1,458 words.
Oregon legislators need to take back authority and responsibility before the next natural disaster hits Oregon. The current power structure puts all the authority in the hands of the governor.
Senate Republican Leader Fred Girod agrees with this. In his May 12, 2021 opinion column in The Oregonian, he wrote, “It’s past time for the Legislature to rewrite our laws to restore democratic norms and balance to government decision-making. In a democracy, no one person should have all this power.”
ORS 401 is a draconian law that needs to be reformed. Thankfully, it left a powerful tool in the hands of the Oregon State Legislature. ORS 401.204 (2) provides that “The state of emergency proclaimed by the Governor may be terminated at any time by joint resolution of the Legislative Assembly.”
Girod added that, “Oregon Republicans have offered good-government reforms. We are ready to work in a bipartisan way to protect Oregonians’ livelihoods.”
These proposed laws can be retooled for the 2023 legislative session.
Sen. Girod ended by saying what is obvious to Oregonians who lived through the past two years of COVID-19-related restrictions:
“Oregonians deserve their elected representatives to lead. Leadership means taking responsibility for tough decisions. The governor has too much power over the everyday lives of Oregonians. It’s time for the Legislature to act as a co-equal branch of government.”
Kate Brown got away with a two-year emergency because Oregon legislators looked the other way, let her take the lead, get the heat and impose a one-size-fits-all solution to a non-deadly pandemic.
Richard Emmons is the Publisher and Editor of the Josephine County Eagle.