On March 9, 2020, acting pursuant to the extraordinary powers that the R.I. Emergency Management Act (“EMA”) provides, Gov. Gina Raimondo declared a state of emergency in Rhode Island “due to the dangers to health and life posed by Covid-19 . . . .” She has since issued numerous executive orders, directly or indirectly restricting the observance of religious rites, closing “non-essential” businesses, and restricting people’s movements and gatherings. When these restrictions will end is unknown. Importantly, and contrary to what appears to be a widespread belief, the governor’s authority is not unlimited, nor is she the final arbiter on whether a statewide emergency exists or continues. Instead:
• Under the EMA, the governor’s authority to declare a disaster and issue emergency orders is limited to a maximum of 30 days at a time, subject to renewal.
• This 30-day authority to deal with disasters by orders suspending laws and regulations, controlling people’s movements, and taking other extraordinary steps is expressly limited “in scope and duration as is reasonably necessary for emergency response.”
• The General Assembly has retained the authority to force an end to a disaster declaration by concurrent resolution.
• Rhode Island law requires an Emergency Claims Commission for those whose property is taken in response to an emergency.
• Most governors have promulgated restrictive measures to deal with Covid-19. States’ laws, however, are not uniform, nor are the executive orders issued thereunder. Legal and constitutional challenges to these orders abound. Yet New Jersey’s Governor acknowledged he failed to consider the Constitution at all because that was “above (his) pay grade.” How many other public officials will admit as much, if only to themselves?
The Wall Street Journal recently reported that Rhode Island ranks as the 2nd most restrictive state in the union, surpassed only by Hawaii. How ironic – given the express command of the EMA that those “charged with the exercise or enforcement of its great powers...act with restraint and moderation and with strict regard to the rights of the people.”
The consequences of the governor’s actions and the General Assembly’s acquiescence cry out for reevaluation. Given the uncertainty that accompanied the spread of Covid-19 and its effects, considerable initial latitude was given to those ensuring public safety, and our intention is not to second guess them. But there is no pandemic exception to our constitutional rights. Much has changed since March 9: data has accumulated and the affliction “curve” has flattened. Although many epidemiologists anticipate future waves of infection, we cannot allow a re-imposition of restrictions that are illegal or excessive, let alone unconstitutional.
Any evaluation of these restrictions needs to be broadly contextual, addressing both the long and short term societal effects. Is the “cure” causing more harm to society than the disease? Unemployment nationally is 14.7 percent, the highest since data was first recorded in 1948. R.I. has the highest percentage of unemployed workers of any state. That carries a huge price tag in dollars, emotional stability, and mental health. What will be the increase in substance abuse, suicides, and domestic violence? How many illnesses would otherwise already have been diagnosed and treated? All these effects impose social costs. The United Nations Global Food Program states that more than twice as many people will face starvation this year than last. As its director noted “...There is also a real danger that more people could potentially die from the economic impact of Covid-19 than from the virus itself” – especially the poor and minorities.
We have now moved from abstract models to known data about Covid-19. That data must dictate the nature and scope of future restrictive measures, while also evincing a “strict regard to the rights of the people.”
Flanders is a former Associate Justice of the R.I. Supreme Court and a Board member of the R.I. Center for Freedom & Prosperity.