Democracy is under threat, we’re told, and it’s hard to shake the impression that the greatest danger is posed by democratically elected officials who refuse to accept limits on their power. New Mexico’s Governor Michelle Lujan Grisham isn’t the first officeholder to decide that the normal give and take of debate and legislation is too much bother, and to attempt to rule by decree. Boosted by pandemic panic, politicians have grown accustomed to declaring “emergencies” as an excuse to behave like monarchs.
That said, the public shows signs of being fed up with convenient “emergencies.”
“Gov. Michelle Lujan Grisham announced on Friday a new public health order that outlines immediate actions aimed at quickly reducing gun violence and illegal drug use in Albuquerque and Bernalillo County,” the governor’s office announced September 8. “The action plan includes a suspension of open and concealed carry laws in Bernalillo County, temporarily prohibiting the carrying of guns on public property with certain exceptions.”
As has become common since the appearance of COVID-19, the specifics of the restrictions are contained in a public health order issued by the state’s Department of Health Secretary Patrick M. Allen.
But What About the Constitution?
Unsurprisingly, given that the governor unilaterally suspended self-defense rights protected by the U.S. Constitution’s Second Amendment and the New Mexico Constitution’s Article II, Section 6, people had some sharp questions. After all, the U.S. Supreme Court found a strong basis for protecting the right to carry weapons last year in New York State Rifle & Pistol Association v. Bruen and New Mexico’s provision was used to strike restrictions on carrying weapons in City of Las Vegas v. Moberg (1971).
“You took an oath to the Constitution. Isn’t it unconstitutional to say you cannot exercise your carry license?” the governor was asked at a press conference.
“If there is an emergency, and I’ve declared an emergency for a temporary amount of time, I can invoke additional powers,” she responded. “No constitutional right, in my view, including my oath, is intended to be absolute. There are restrictions on free speech, there are restrictions on my freedoms.”
So, rights protected by the Constitution are limited by invoking the magic word “emergency,” but the governor has the unlimited power to rule by decree once that’s done? That seems…odd.
It’s Always a Good Time for an Emergency
Unfortunately, Grisham isn’t alone in that particular belief. Emergency orders, arbitrary suspensions of rights, and unilateral decrees proliferated in 2020 and thereafter in response to COVID-19 and fears of contagion. In most cases “public health” was the rationale invoked, just as it was in New Mexico.
Reactions varied depending on the legal basis in state law invoked by officials and just how far the decrees stretched the norms of a free society. California courts upheld Governor Gavin Newsom’s broad exercise of power to modify laws or make new ones during declared emergencies, while Michigan’s Governor Gretchen Whitmer’s efforts to bypass the legislature was slapped down by that state’s Supreme Court.
“The Constitution cannot accept the concept of a ‘new normal’ where the basic liberties of the people can be subordinated to open-ended emergency-mitigation measures,” wrote U.S. District Judge William S. Stickman IV in a 2020 case against Pennsylvania’s governor. “Rather, the Constitution sets certain lines that may not be crossed, even in an emergency. Actions taken by Defendants crossed those lines. It is the duty of the Court to declare those actions unconstitutional.”
An appeals court vacated that ruling as moot after Pennsylvania voters curbed the governor’s emergency powers. Lawmakers around the country shared their concerns.
“Since March 2020, twelve bills aimed at increasing legislative oversight of gubernatorial emergency power authority have been enacted in nine states, including Arkansas, Colorado, Indiana, Kansas, Kentucky, New York, Ohio, Pennsylvania, and Utah,” notes BallotPedia.
But voters and legislators acted to restrict emergency powers because political executives are enamored of rule by decree. Last year, elected officials called on the White House to use emergency powers to advance green causes. In May, North Carolina’s governor declared “a state of emergency for public education” because lawmakers opposed him on education policy. The Biden administration retained some pandemic powers even while finally ending the COVID-19 emergency declaration in May; the powers were earlier used to postpone student debt and impose an eviction moratorium. And, of course, the governor of New Mexico invoked a “public health emergency” to suspend self-defense rights.
“Since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country. Executive officials across the country issued emergency decrees on a breathtaking scale,” Supreme Court Justice Neil Gorsuch wrote in May in a case involving immigration rules imposed under emergency powers. “Doubtless, many lessons can be learned from this chapter in our history, and hopefully serious efforts will be made to study it. One lesson might be this: Fear and the desire for safety are powerful forces. They can lead to a clamor for action—almost any action—as long as someone does something to address a perceived threat.”
It Might Be an Emergency—for the Governor
That was true early in the pandemic, but many Americans have tired of being stripped of basic liberties every time politicians decide the word “emergency” is a magic spell for invoking authoritarianism. Grisham already faces multiple lawsuits over her decree, state legislators are talking impeachment, and even some of the governor’s gun control allies concede the move is unconstitutional.
“I support gun safety laws,” commented Rep. Ted Lieu (D-CA). “However, this order from the Governor of New Mexico violates the U.S. Constitution. No state in the union can suspend the federal Constitution. There is no such thing as a state public health emergency exception to the U.S. Constitution.”
“The move builds upon a growing tendency in American politics for governors to test the limits of their authority and effectively dare the courts to stop them,” The Washington Post‘s Aaron Blake pointed out. “Democrats have warmed to this approach, even in some cases when they had indicated they didn’t have those authorities.”
Importantly, many New Mexico residents make it clear that they just won’t comply.
“Gun owners—many visibly armed—rallied in old Town Albuquerque today to openly defy the New Mexico Governor’s Executive Order banning the open and concealed carry of firearms there as a one-month ’emergency’,” documentarian Ford Fischer observed of video he took at the scene just two days after the order was issued. “Police did not intervene or enforce the order.”
Bernalillo County Sheriff John Allen explicitly says his office won’t enforce the decree.
Undoubtedly, challenges to Governor Grisham’s orders will work their way through the courts and the legislature, following the path of challenges to earlier decrees. But as officeholders continue to flirt with the temptations of unilateral rule, no response to authoritarian government action is quicker or more reliable than flat-out non-compliance.
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