Three Oregon state legislators and a private citizen have filed a motion for summary judgment in Multnomah County Circuit Court asking that the court overturn Gov. Kate Brown’s executive orders in relation to the COVID pandemic arguing that she has overstepped her bounds as governor and violated the separation of powers between the Oregon State Legislature and the Governor’s Office.

Oregon State Reps. E. Werner Reschke, Mike Nearman, and Oregon State Sen. Dennis Linthicum argue that the various laws and amendments to the Oregon Constitution over the decades while allowing the Governor to exercise certain powers in an emergency situation do not give her vast legislative powers. Especially if such legislative powers have not been granted by the legislature. They also argue that the State Legislature does not have the authority to give away its powers to the executive.

In its motion for summary judgement with the court, the plaintiffs are asking that Brown has acted above the law and violated the separation of powers in Oregon. They are asking that the court invalidate all emergency orders related to COVID, asking that they be ruled unconstitutional.

They argue that the extension of emergency powers by the Governor through multiple executive orders is in violation of what is written under the Oregon Constitution under the emergency powers clause during a time of disaster. With a limited time frame Brown never went before the legislature, despite there being multiple special sessions during the summer, to ask for an extension of the emergency orders and the State Legislature never approved on its own accord to extend the emergency declaration, which it is required to do so under the Oregon Constitution. According to the Oregon Constitution an emergency declaration can only be extended twice for two 14-day periods before requiring approval for a longer period of time from the State Legislature. The plaintiffs argue in their motion that since Brown did not seek approval any executive order issued after the initial one is therefore invalid and should be struck down.

Another main argument made by the plaintiffs is that Brown has been acting in a legislative capacity, and that violates the separation of powers between the state legislature and the Governors Office; even if there is a crisis situation the State Legislature can be called into special sessions to address the crisis. The plaintiffs argue that many of her executive orders issued since April have been largely legislative in nature, and since they come after the initial disaster period ended, the State Legislature needed to approve them for them to remain valid, which the State Legislature did not and are therefore attempts for the Governor to legislate without consulting the State Legislature.

The plaintiffs are worried that by ignoring the separation of powers Brown is setting a dangerous precedent for future governors and future crisis that they can ignore the State Legislature and legislative the way that they see fit without needing any approval from the State Legislature. The plaintiffs are not asking that the idea of issuing disaster declarations be struck down, they are asking that the proper procedure under the Oregon Constitution be followed.

One section they are looking to be invalidated is Chapter 401, which Brown has been using for the past several months as her authority to issue executive orders. According to the motion, Chapter 401 is broad and vague in terms of what is an emergency as a statutory definition, They argue that Brown has issued executive orders under Chapter 401 for such things as the solar eclipse, demonstrations in a park in Portland, and for Hurricane Katrina. They note for the H1N1 Swine Flu epidemic in 2009 there was no use of Chapter 401, instead the Public Health Director declared an outbreak. The Plaintiffs also argue that a moderate flu season has historically had more of an impact on hospitals than COVID and no governor is recent memory has ever issue an emergency executive order for any flu season.

Therefore, according to the Plaintiffs, Chapter 401 is unconstitutional because it allows the Governor to exercise legislative functions. Which they argue that is against the separation of powers argument going back to the founding of America, when several Founding Fathers were worried that an unchecked legislator could lead to tyranny. The motion cities several past Oregon Supreme Court cases and largely relies on McFadden which articulated a standard for authority vested in the Governor and authority vested in the State Legislature and how those two can and can’t mix.

While the State Legislature can call itself into an special session, the plaintiffs argue that this places an undue burden on the State Legislature. They argue that the Emergency Board is not equipped to act as a legislature and is not statutory authorized to act in such a manner. It is only able to help with budgetary shortfalls in between sessions. They make the argument that even if the State Legislature is called into session they face a veto threat from the Governor unless they are able to muster a 2/3 majority to override any veto to end an emergency.

With the motion filed, the Governors Office has not responded, the next scheduled court date is Jan. 21, 2021.

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