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Arizona bars: Law Ducey used to force shut-down unconstitutional
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Arizona bars: Law Ducey used to force shut-down unconstitutional

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PHOENIX — Bar owners from around the state are asking the Arizona Supreme Court to rule that Gov. Doug Ducey does not have the constitutional authority to shut them — or any other business — down.

While not disputing that the COVID-19 outbreak is an emergency, the law that gives Ducey the unilateral power to do things like close down certain businesses “unconstitutionally delegates the legislative power of this state to the governor,” says Attorney Ilan Wurman, an associate professor at Arizona State University.

He wants the justices to not only void the law giving the governor those powers but also declare that any orders Ducey already has made under that law are illegal and cannot be enforced.

The outcome of the legal fight would affect not just the owners of the 20 bars around the state who are challenging Ducey’s authority, but every other kind of business the governor has ordered forced to close or limit their operation.

And it also could affect the governor’s future ability to impose a new stay-at-home order as well as directives about when, and if, schools can reopen.

There was no immediate response from the governor’s office.

Central to the case is the law that both allows Ducey to declare an emergency and then gives him “the right to exercise … all police power vested in the state by the constitution and laws of this state” to deal with it.

“Petitioners have suffered great harm from being unable to operate their businesses in pursuit of their lawful occupations and ordinary callings,” Wurman told the justices. “They have no idea when they will be able to reopen.”

The problem with the governors action, he said, is that the law approved by the legislature that gave him that power is unconstitutional.

“The legislature may not delegate its legislative power to another,” Wurman said. “Under the doctrine of ‘separation of powers’ the legislature alone possess lawmaking power,” a power he said lawmakers “cannot completely delegate … to any other body.”

At best, he said, lawmakers can allow another branch of government “to fill in the details of legislation already enacted.”

Here, Wurman said, the legislature went far beyond that in giving Ducey complete police powers.

“The ‘police power’ of a state is, in effect, its legislative power: its power of the health, safety, welfare and morals of the people,” he wrote.

Wurman told the court the law gives Ducey unfettered authority.

Wurman said none of his clients are arguing that government cannot close down their businesses in “appropriate circumstances.”

“The question is who within our constitutional system of government has that power,” Wurman said.

“That person is not the governor,” he continued. “The state legislators have that power.” Wurman said they cannot constitutionally delegate it to the governor.

Wurman acknowledged that the laws allowing the governor to declare an emergency also give the legislature the authority, with a simple majority vote of each chamber, to declare it over. But he said that does not overcome the legal issue of lawmakers having given the chief executive unlimited police powers in the first place.

“Nothing in (health law) authorizes the governor to close down petitioners’ businesses,” he said.

Wurman conceded that there is a section law that allows cities and counties — but not the governor — to close any business during a state of emergency. But even here, he said, that is only as necessary “to preserve the peace and order of the city, town or unincorporated areas of the county.”

The lawsuit also raises an equal protection argument, saying Ducey cannot decide that some businesses are permissible while other are not.

“If the purpose of the governor’s order is to mitigate the spread of a pandemic by ensuring that businesses follow particular sanitary measures, then the governor must permit all businesses to operate who can meet those standards,” he wrote.

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