Twenty-six bars across the state of Arizona are suing Gov. Doug Ducey after he issued an executive order that shut down select places of business and recreation due to coronavirus. Gov. Ducey is asking the Arizona Supreme Court to throw out the case.
Just weeks after easing up on the state’s stay-at-home order, Ducey issued a new executive order on June 29 in response to a spike in coronavirus cases. The order closed bars, gyms, movie theaters, and water parks through the end of July. Ducey has since extended those closures indefinitely.
According to the plaintiffs, the governor does not have the legislative power to make laws forcing businesses to close and depriving their owners to pursue a lawful occupation without due process. Furthermore, the lawsuit asserts that it is unconstitutional discrimination to close bars, while leaving restaurants with bars and wineries open. Although the plaintiffs acknowledge the urgency of the pandemic, they contend that Gov. Ducey could have handled the situation with an approach that was tailored more narrowly.
“This case is about whether the citizens of Arizona are governed by laws, or by the whims of one man,” the lawsuit states. “Petitioners are small business owners all over Arizona whose businesses have been shut down by the Governor's recent executive orders, issued pursuant to a statute that purports to delegate to the Governor the entire "police power" of the state in the event of an emergency. Petitioners seek a declaration of their rights, as well as an order enjoining the Governor from enforcing his executive orders against them.”
But according to Brett Johnson, Ducey’s attorney, there is nothing wrong with state lawmakers giving broad authority to governors in cases where they declare a state of emergency, as Ducey did in March. Johnson said that emergency power is not absolute, which is what makes the granting of such authority legal, reported the Arizona Capitol Times.
“The legislature, in preparation for this moment in history, provided statutory guidance on the scope and limitations of the executive’s authority during an emergency,” Johnson wrote.
Several organizations have lined up in support of the governor. The Arizona Department of Health Services, the Arizona Chamber of Commerce, and the Arizona Board of Regents have all filed briefs backing Ducey.
Still, Illan Wurman, an associate professor at Arizona State University's law school and the businesses’ attorney, is confident he can win the case.
"All I have to say is bring it on," said Worman. "It doesn’t matter how many organizations join Ducey in this lawsuit. We have the constitution on our side, and that’s all we need."
This is the second time this month that businesses have brought a lawsuit against Gov. Ducey, a Republican and former businessman himself. Previously, an Arizona gym requested a restraining order blocking that same executive order, which forced them to close their doors due to COVID-19 concerns. The fitness center contended that it could operate safely and should be allowed to reopen. The court ruled against the plaintiff, declaring that the governor’s executive order was within his authority.
Ducey isn’t the only governor facing pushback for his handling of the pandemic. California Gov. Gavin Newsom and New York Gov. Andrew Cuomo have both taken flak for deciding what constitutes a “meal” in their latest guidelines on restaurants, which are allowed to stay open, and bars, which must close. In Texas, more than 30 bar owners have filed a $10 million federal lawsuit against Gov. Greg Abbott in an effort to void his executive order shutting down bars for a second time since the beginning of the coronavirus pandemic. Similarly, Michigan Gov. Gretchen Whitmer currently faces a lawsuit by the Mackinac Center Legal Foundation challenging her unilateral extension of emergency powers. The Michigan Supreme Court will hear oral arguments September 2.
As for Arizona’s situation, the governor has won every case challenging his authority thus far. Perhaps this one will be different.