I have no idea what the Oregon constitution says about this. So I looked it up.
The Oregonian article from this afternoon was exciting! Oregon governorâ€™s coronavirus restrictions on religious gatherings, social gatherings â€˜null and void,â€™ judge rules:
A Baker County judge on Monday ruled that Gov. Kate Brownâ€™s restrictions on religious gatherings are “null and void” because her emergency order amid the coronavirus pandemic exceeded its 28-day limit.
Here’s the crux of the legal argument:
Attorneys for the churches successfully argued that ORS 433.441 limits declared public health emergencies to 14 days, or up to 28 days maximum, and because COVID-19 is a public health crisis, that limitation applied.
But the governorâ€™s attorney countered that Brown declared a state of emergency under a different state law, ORS 401.165, which is not limited to any particular time period and continues indefinitely.
The judge found that the governorâ€™s other executive orders placing limits on social gathering also were void because they exceeded the 28-day limit. â€œMoreover, by not complying with ORS 433.441(5) timelines, the Governorâ€™s subsequent Executive Orders 20â€”05 through 20-25 are also null and void,” the judge wrote.
If you look at ORS 433.441, section 5 says this:
A proclamation of a state of public health emergency expires when terminated by a declaration of the Governor or no more than 14 days after the date the public health emergency is proclaimed unless the Governor expressly extends the proclamation for an additional 14-day period.
So if that’s the basis for the judge’s ruling, we see where he got it from. But if we look at ORS 401.165:
The Governor may declare a state of emergency by proclamation at the request of a county governing body or after determining that an emergency has occurred or is imminent.
Post-declaration, the governor’s powers really kick in during ORS 401.168:
(1) During a state of emergency, the Governor has complete authority over all executive agencies of state government and the right to exercise, within the area designated in the proclamation, all police powers vested in the state by the Oregon Constitution in order to effectuate the purposes of this chapter.
(2) During a state of emergency, the Governor has authority to suspend provisions of any order or rule of any state agency, if the Governor determines and declares that strict compliance with the provisions of the order or rule would in any way prevent, hinder or delay mitigation of the effects of the emergency.
(3) During a state of emergency, the Governor has authority to direct any agencies in the state government to utilize and employ state personnel, equipment and facilities for the performance of any activities designed to prevent or alleviate actual or threatened damage due to the emergency, and may direct the agencies to provide supplemental services and equipment to local governments to restore any services in order to provide for the health and safety of the citizens of the affected area. [Formerly 401.065]
So the entirety of the legal decision hinges on which part of the state constitution the governor declared a state of emergency under. Does a governor get to decide this? It would seem to me that the answer would be “yes.” But what do I know? I’m sure that the Oregon Supreme Court will tell us. And soon.