The orders straddle the line between the public and private good, pitting the financial health of some against the physical health of all. And because of their sweeping, intrusive impacts, they raise a simple question: Are they legal?
The answer, according to legal experts, is yes — largely because of the state of emergency declared by Hogan March 5.
“Once the governor declares an emergency, he has extraordinary powers to do what is needed to meet the emergency,” said Michael Greenberger, director of the Center for Health and Homeland Security at the University of Maryland School of Law.
President Donald Trump and other federal officials are making similar moves under a national emergency declaration.
Greenberger and his 25-person staff are among the nation’s foremost experts on executive powers in emergency settings, and have particularly in-depth knowledge of laws in Maryland. They are currently advising a whole host of other jurisdictions and agencies across the country, having been inundated by questions not only about "what the law is, but what the best practices are.”
“Those powers cannot be used in an arbitrary and capricious manner, so that there are both express and implied abilities of citizens in Maryland to challenge what the governor has done,” Greenberger said. “But the governor, in a case of declared emergency, has extraordinary powers.”
Making the case that Hogan has been “capricious” would be tough, he said.
Hogan has tried to show a steady hand in introducing additional measures, day by day, as the crisis has built. He has acknowledged some represent burdens, but asked for cooperation.
“I know that right now there is a lot of anxiety and stress out there — folks are worried about what lies ahead and how we will get through this,” he said this week. “But I want Marylanders to know that if we continue to lead and work together — if we rely on and help each other — we will get through this.”
Frosh, a Democrat who has clashed with the Republican governor over various matters in the past, said Hogan has been going “methodically down the right path” in considering the options before him. And Frosh supports the decisions he has made thus far.
“There is going to be a lot of financial suffering, but it beats death," Frosh said.
Historically, some of the earliest examples of governments being granted sweeping emergency powers over their citizens came amid epidemics and pandemics, when special ad hoc committees were empowered to take over sanitation and disposal efforts, said Wendy Parmet, director of the Center for Health Policy and Law at Northeastern University School of Law.
Later, around the second half of the 20th Century, communities and states began to legislate such emergency powers into law, so that the authority didn’t have to be reestablished each time an emergency arose.
“What’s interesting about public health law is that ... it’s a history of emergency law, of empowering extraordinary things to be done" during sudden health crises, Parmet said. “There has always been extraordinary legal responses to those emergencies.”
While the United States hasn’t seen such drastic health measures in 100 years, “in some sense we are just back to the future, living in a nightmare that so many of the generations before would have been more familiar with," Parmet said. “Horrible pandemics and epidemics that could almost destroy a city — that’s part of the human fate. That’s part of our history as a species.”
Long before the current pandemic began, the Maryland legislature had vested great powers in the governor whenever an emergency has been declared. This week, it gave him even more powers, including the right to halt price gouging on certain items in high demand.
Throughout the past few weeks, as Hogan’s staff has worked to devise executive orders to help the state halt the spread of the deadly new respiratory disease, they have bounced ideas and questions off assistant attorneys general who work out of all the various state agencies being affected, from health and education to elections, insurance and transportation, Frosh said.
“His lawyers will talk to our lawyers, some of his agency people will talk to our lawyers,” Frosh said. “We don’t make the decision about what to do, but we do tell them what we think they can do, and the best way of accomplishing their goals."
Hogan’s chief legal counsel, Michael Pedone, who was previously responsible for legal and risk management affairs as general counsel for Tradepoint Atlantic, could not be reached for comment, but Frosh and others say he has been a central figure in the administration’s actions. A Hogan aide called Pedone “a machine.”
Frosh said as a general rule, the governor is empowered to prioritize the good of the whole. As an example, he pointed to Hogan’s recent order barring evictions of renters who can show they have suffered substantial financial loss due to the outbreak.
“The eviction piece is an interesting one to think about, because it really does intrude upon people’s private property rights,” Frosh said. “But as a society, the last thing in the world we need right now is more homeless people, people who are out on the street without a stable place to live, coming into contact with all types of other people and locations.”
Landlords may have the right to try to challenge the order in court, Greenberger said, but when governors “act on behalf of the health and welfare of the entire population, they have a lot of legal leverage in terms of impacting individuals.”
Frosh said that “owning an apartment or a home or a business is really irrelevant if you don’t survive to take advantage of it.”
He also said that, once the state of emergency is lifted, he expects “a series of rolling crises that stem from this,” including some linked to landlords and tenants clashing over back rent and other issues.
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“It’s not possible to predict them all, but there are going to be a series of economic consequences that are going to be extremely serious."
There may also be more orders to come, shaking up our understanding of the future even more.
Greenberger said that Hogan has explicit powers “that would go far beyond” those he has already taken, including the power to order geographic quarantines and issue directives to medical personnel licensed in the state.
“There are many levers left to pull," Greenberger said.
Parmet said it will be interesting to see how far Maryland and other states go during this pandemic, in part because the “outer limits” of their powers have never been fully tested in the past, and “are not completely known.”