Monday, March 23, 2020

ANALYSIS: Governor's New Executive Order Prevents Mayors From Taking The Lead (READ Exec Order)

This afternoon's news coverage of the new Executive Order from Arizona Governor Doug Ducey seems to miss the point. The Governor is not setting out a broad list of "essential businesses" "just in case" he issues a shelter-in-place or lockdown order as the Covid-19 outbreak worsens in the state.

Rather, Ducey is explicitly preempting and tying the hands of mayors who may want to get out ahead of him and shut down more businesses in their communities. That intent is clear not just from the title and the opening "therefore" paragraph, but in more subtle ways. The entire Executive Order is reproduced, below.

The title of the Executive Order is "Prohibiting the Closure of Essential Services". If this was intended to define essential services for a statewide lockdown, it could and would be included in such an order. The first action paragraph spells it out: "No county, city or town may make or issue any order, rule or regulation that restricts or prohibits any person...."

The 2nd paragraph is a bit trickier, though. It requires any Mayor (or county) from issuing any order or proclamation without coordinating with the state in advance, and as long as it is "consistent" with the state's "advice".

And, finally, the list of what the Governor has deemed to be "essential businesses" is quite broad, and includes golf courses, trails and other outdoor recreation, hotels/motels, photography stores, appliance stores, and so on.

This comes on the heels of divergent approaches to the crisis by Ducey and Mayors of several Arizona cities. Phoenix, Tucson and Flagstaff mayors led the way in closing bars, dine-in at restaurants and more.

Phoenix Mayor Kate Gallego took a not-so-veiled swipe this evening, noting the controversy about crowded hiking trails and that city attorneys are "researching whether today’s Executive Order from the Governor limits our ability to restrict access."

The Governor apparently did not fill mayors in on the Executive Order in his briefing call this morning. And, when asked at the press briefing this afternoon what was in the Order, he declined to go into specifics.

This preemptive action also comes as several states and communities around the nation have ordered people to shelter in place or to be locked down in order to help prevent an overwhelming spike of cases. And, as Arizona Senator Kyrsten Sinema (D-AZ) and others urge Gov. Ducey to take more aggressive action.


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