HARMFUL RESTRICTIONS ON THE ACTIONS THAT CAN BE TAKEN BY SCHOOLS, BUSINESSES, CITIES AND COUNTIES FROM EXECUTIVE ORDERS WILL BECOME ACTUAL LAW

As I wrote about last week, Ducey & Christ have been consistently misusing the Public Health Emergency authority in ways that harm the COVID-19 response.

The purpose of declaring a public health emergency is to give governors and health directors authority to do things that they normally can’t… allowing them to conduct interventions to help mitigate the public health crisis using authority that they don’t normally have.

Sadly, rather than use their emergency authority for good things, they have been using it to prevent cities, counties, K-12, businesses, universities, and community colleges from doing things that they want to do to manage COVID in their organizations (see this blog post on their misuse of emergency authority).

Ducey & Christ have no interest in lifting the emergency declaration anytime soon because they are enjoying the authority that the public health emergency declaration gives them to micromanage cities, counties, businesses, the K-12 system, universities and community colleges.

However, during the budget negotiations, some legislators conditioned their support of the budget on rescinding the state of emergency.

Ducey and Christ responded by locking in their restrictions on K-12, universities, businesses, community colleges, cities, and counties by including their harmful restrictions on those entities into a budget reconciliation bill (SB 1819).

SB 1819 Prohibits a county, city or town from making or issuing any order, rule, ordinance or regulation related to mitigating the COVID-19 pandemic that impacts private businesses, schools, churches or other private entities, including an order, rule, ordinance or regulation that mandates the use of face coverings, requires closing a business or imposes a curfew.

In addition, Ducey & Christ ensured that school districts can’t  require masks this fall (even elementary school students – who will not qualify for the vaccine by fall). They were able to insert this language into the K-12 budget bill – HB 2898:

15-342.05. Face coverings; requirement prohibition

A school district governing board may not require the use of face coverings by students or staff…

Likewise, they locked in their executive order restrictions on university and community college COVID intervention strategies by inserting the following language into the higher education BRB (HB 2897):

15-1650.05. COVID-19 vaccine; face covering; testing

A public university or a community college may not require that a student obtain a COVID-19 vaccine or place any conditions on attendance or participation in classes including mandatory testing or face covering usage.

In other news, SB 1819 puts substantial limitations on the ability of  a future  governor and a health director to declare a public health emergency. SB 1819:

  • Caps the next governor’s initial public health state of emergency at 30 days (beginning 2/2/23).

  • Allows the next governor to extend a public health emergency for up to 120 days and prohibits subsequent extensions to 30 days.

  • Terminates a public health emergency after 120 days unless extended by the Legislature.

  • Allows the Legislature to extend the state of emergency, limiting extensions to 30 days.

Editorial Note: I’m not sure whether SB 1819 is good or not. If we were to have a public health emergency in the future with a thoughtful governor and compassionate & competent health director, limits on their emergency authority would be bad.

However, if we face a future public health emergency with persons like Ducey and Christ again, the limitations would be good, as they are now, on balance, using their emergency authority for bad rather than good things.

The entire package is expected to be sent to the governor and rubber-stamped before midnight Wednesday.

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