Bacon's Rebellion

Democracy Thrives in Sunlight

The Futility of No-Shutdown Resolutions

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by

James A. Bacon
in

by Emilio Jaksetic

According to The Virginia Star, some Virginia counties are considering drafting resolutions to oppose enforcement of Governor Ralph Northam’s executive orders on COVID-19.

While I believe Northam abused his emergency powers, this is not the solution. If passed, these resolutions are likely to be found to be legally unenforceable by Virginia courts on four grounds.

First, in Virginia, local governments (county, city, town, or regional) have limited power. The local governments derive their existence and powers from laws passed by the General Assembly (VA Constitution, Article VII, Sections 1-3).  Furthermore, under the Dillon Rule, local governments have only those only powers that are:

  1. expressly granted by the General Assembly;
  2. necessarily or fairly implied by the expressly granted powers; and
  3. essential to the declared objects and purposes of local government.

According to the Dillon Rule, any reasonable doubt about whether such powers exist “must be resolved against the local governing body.”

(See, e.g., Dumfries-Triangle Rescue Squad, Inc. v. Board of County Supervisors of Prince William County, VA Supreme Court, October 22, 2020.)

Second, the powers of local government are subordinate to the Virginia Constitution and the Code of Virginia. According to Section 1-248 of the Code, “The Constitution and laws of the United States and of the Commonwealth shall be supreme. Any ordinance, resolution, bylaw, rule, regulation, or order of any governing body or any corporation, board, or number of persons shall not be inconsistent with the Constitution and laws of the United States or of the Commonwealth.” Northam’s Executive Orders on COVID-19 invoke authority under the Virginia Constitution and cited provisions of the Virginia Code.

Third, under the Virginia Constitution, the judicial power is vested in the courts (VA Constitution, Article VI, Section 1), and the judicial power cannot be exercised by the executive or legislative branches of the Virginia government (VA Constitution, Article III). Moreover, declaring a law or governmental act to be unconstitutional is an exercise of judicial power committed to the Virginia courts. Local governments may have strong beliefs and opinions about the constitutionality or unconstitutionally of a law or governmental action, but those beliefs and opinions are not legally determinative or dispositive.

Fourth, nothing in the Virginia Constitution or the Virginia Code makes the governor  subordinate to, reviewable by, or subject to limitations set by, local governments.

Of course, the Virginia governor is not above the law, and the legality of his actions can be challenged in the courts. See, e.g., Howell v. McAuliffe (VA Supreme Court, July 22, 2016) (Supreme Court decision upholding legal challenge to Governor McAuliffe’s executive order removing political disabilities from approximately 206,000 Virginians convicted of a felony). Also, the governor can be impeached by the House of Delegates and removed from office if convicted by the Senate (VA Constitution, Article IV, Section 17). However, given the current Democratic Party majority in the General Assembly, it is improbable that Northam would be impeached and removed from office based on his executive orders concerning COVID-19.

Any ordinance, rule, resolution or proclamation issued by any local government that seeks to prevent or limit enforcement of Northam’s executive orders concerning COVID-19 is likely to be held unenforceable by a court. At most, such issuances can only have symbolic effect that expresses or signals strong disagreement and dissatisfaction.

Any citizen, business, organization or group in Virginia aggrieved by Northam’s executive orders concerning COVID-19 should not expect to get any meaningful or tangible relief based on any ordinance, rule, resolution or proclamation issued by a local government.

Rather than invest time and energy in getting local governments to pass symbolic, legally unenforceable declarations, anyone convinced that Northam has exceeded or abused his authority in issuing his executive orders on COVID-19 should invest their time and energy in seeking relief though the courts.

Emilio Jaksetic, a retired lawyer, is a Republican in Fairfax County.

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14 responses to “The Futility of No-Shutdown Resolutions”

  1. James Wyatt Whitehead V Avatar
    James Wyatt Whitehead V

    Oh I could not disagree more with you. Anyone familiar with the 2nd Amendment Sanctuary Resolutions passed in Virginia localities knows what a powerful grassroots support this carries. If local law enforcement is even symbolically empowered to tell the Governor to take a hike they will. I would love to see Mr. Northam attempt to wield his enforcement powers over 95 counties and 38 cities/towns. Good Luck Mr. Northam.
    https://gastatic.com/digest/wp-content/uploads/2019/12/2a-sanctuaries.png

    1. Emilio Jaksetic Avatar
      Emilio Jaksetic

      I was discussing the legal futility of the proposed resolutions to warn people that such resolutions do not provide them with legal protection if they decide to refuse to comply with Northam’s executive orders.

      Your comment advances a political argument that parallels a similar one made by Gandhi in colonial India many years ago: if many people refuse to obey laws that they find offensive, then the British colonial government cannot put them all in jail. A similar kind of political argument was behind the colonial American noncompliance with the British Stamp Act and other objectionable British laws prior to the American Revolution, as well as civil disobedience acts against segregation laws advocated by Rev. Martin Luther King and others in the 1960s.

      I cannot adequately discuss in a brief op ed piece or a comment such as this the pros and cons of whether Virginians should pursue the legal approach or the civil disobedience approach in response to Northam’s executive orders.

      Civil disobedience is a political choice with potentially serious legal consequences if the authorities decide to escalate enforcement against the people engaged in civil disobedience. Before Virginians decide whether to choose the legal approach or the civil disobedience approach, they should at least be aware of the potential legal consequences involved.

      Given Attorney General Herring’s advisory opinion against Second Amendment sanctuary resolutions (VA AG Opinion, December 20, 2019), and the threat of legal sanctions made against the Lighthouse Fellowship Church of Chincoteague in April 2020 for alleged violation of COVID-19 restrictions, it is likely the Northam Administration will be more inclined to seek enforcement of the COVID-19 executive orders rather than ignore noncompliance.

      1. V N Avatar
        V N

        We have a bunch of scaredy cats down here in Hampton Roads, too frightened to try anything like that. They think showing up to vote and that’s it guarentees them what they want. Amazing how the left was able to accomplish it by intimidation. If they attempt to keep on enforcing, then they’ll find out what England did with Ghandi IF you can get enough of these Republicans to actually DO something rather than beef on the internet.

      2. James Wyatt Whitehead V Avatar
        James Wyatt Whitehead V

        “I cannot adequately discuss in a brief op ed piece or a comment such as this the pros and cons of whether Virginians should pursue the legal approach or the civil disobedience approach in response to Northam’s executive orders.”

        I think you are thoughtful writer. I would like to know your line of thinking on this. It would generate a good discussion. Perhaps a future post?

    2. Reed Fawell 3rd Avatar
      Reed Fawell 3rd

      Emilio Jaksetic is dead wrong here. His problem is he is thinking only like a lawyer, a habit that frequently is fatal to common sense and experience. The American people must resist on all fronts. This includes civil disobedience on a massive scale. Otherwise, at this point, all will be lost to the leftists.

      1. Reed Fawell 3rd Avatar
        Reed Fawell 3rd

        “Otherwise, at this point, all will be lost to the leftists.”

        Why?

        Consider this from Mark Helprin writing in the fall edition of the Claremont Review of Books, on the subject of “The Revolution of 2020.”

        “… a standard concept in real estate development is that future development will occur on the shortest line between two prosperous centers of population – strong points if you will – within easy reach of one another. The increasingly hard left has taken over the strong points of American life – educational systems, the press, entertainment, sports, a large slice of religion, institutions of high culture, foundations, most professional organizations, and pusillanimous businesses, from sneaker manufactures to banking behemoths. Now, even one of the major political parties is a hostage deep in the throes of Stockholm Syndrome. …”

        I agree with Mark Helprin. If those are the facts, it is about time that we all wake up and devise an effective strategy to deal with the reality that confronts us instead of our hiding from that reality.

  2. Eric the Half a Troll Avatar
    Eric the Half a Troll

    So the Dillon Rule does not then allow a locality to kill its citizens unless specifically authorized by the general assembly. I think a few of them might be like “Hold my beer!”

  3. V N Avatar
    V N

    Mr. Jaksetic,
    I have tried to show several lawyers how they can go after the medical side of this (VDH). Whether or not they get bright enough to look at the data and see how they can undermine the whole medical case that Northam uses, I don’t know but its either that or go high enough to a conservative run court to get an answer.

    1. Steve Haner Avatar
      Steve Haner

      You expect some lawyer to argue in court the public health concerns are not based in fact? Yep, they’ve all broken out in laughter as soon as you’ve left the office or hung up the call….Sydney Powell might try it. I see she has free time now.

      There are no shutdowns at this time. Frankly, back in the spring, it was very limited compared to other states. There are capacity restrictions (nothing new under the law) or closing times for alcohol sales (also a major ABC power all along.) I’m tired of the whining about the masks. Your freedom ends at my nose, and my nose doesn’t want your virus.

      We just had a huge referendum basically on this very question. The voters went with the guy who falsely but warmly promised them protection, a promise he cannot deliver, and rejected the guy who said “use your own judgement.” It was a result that Madison would have predicted way back then.

      But all politics is local and those resolutions will look great set out in type in a campaign mailer….

      1. V N Avatar
        V N

        The freedom line hasn’t worked out in multiple cases. So far you have lawyers that are batting zero with a strategy they repeated and still hasn’t worked.
        The medical part I’m referring to, I would have told you specific parts to go after, which would make them look as incompetant as they really are. This is what happens when they’ve all broken out with laughter as I’ve left the office or hung up on the call. Like Republicans trying the same old worn out unsuccessful strategies, they blow off new ones that could have a potential to make a dent in the reputations of the other side, and just keep losing.
        There is a good reason why a # of us refuse to to go to the Republican party. Same old strategies rather than something new and bold they’ve not tried. This is why Trump won in 2016 and did pretty good this time. People are sick of Republicans trying the same old crap, by the same old people in power, who are no different than Democrats. None of them have the gumption to try anything new.

        1. Steve Haner Avatar
          Steve Haner

          So what is your medical pitch? I agree, the science is clear on the schools being able to operate safely — but what else do you think Northam is getting wrong? My assumption was you are going to argue the “hoax” theory, which I will push back on.

          As to the validity of civil disobedience, I’ve been saying for months that persuasion was the stronger tactic, not coercion. And again I think Northam gets that and has been slower to lower the hammer. The one exception to that has been with these workplace regulations, where of course the trial lawyers are driving the train wanting to sue everybody, along with the unions wanting a club to use on management.

          1. V N Avatar
            V N

            VDH needs to have the house cleaned and folks put in who actually go by the data, are willing to question, rather than follow the media or their personal inclinations. I would expect competancy in terms of knowing not just what medical research VDH has and uses, and what they can say against research that doesn’t agree with their line of thinking.
            The small business go after, is nothing but a power grab. The shutdown since Feb. should not have happened.
            The VDH should be taking leadership on the LTCF’s, prisons. They’re not. Allowing hospitals to stop dumping COVID patients in LTCF’s was a cluster that should have had criminal charges on the decision makers and those who didn’t try and stop it.
            Prisons? They should have had a better plan and it have been implemented. How did it get in there? Visitors and workers. Then inappropriate protocols for the inmates.
            The fact that the Eastern Shore poultry producers were able to get away with harming their folks is because they put pressure on the VDH to shut up the issue. When a General Assembly member couldn’t get legislation thru to protect the workers, that’s blatant corruption.
            When you have MD’s at the VDH who are incapable of knowing and reciting research, who are charged with enforcing rules, that’s another botch.
            When VDH personnel go out of their way to try and block and slander folks who speak the truth on all this, says that they are not competant enough to deal with medical issues, and want to hide what they’re doing, not fix problems.
            If you have a dept. like that, that doesn’t inspire any reason for me to take what they’re doing seriously. Only to look for more unethical, immoral, or potentially corrupt behavior in the future.

          2. Steve Haner Avatar
            Steve Haner

            VDH has not covered itself with glory, understood. Luckily we also have CDC and plenty of other sources of research and advice. I’m still not sure that their failings mean the Governor’s EOs or other mediation efforts are misguided or invalid.

          3. V N Avatar
            V N

            If the people violating federal laws, refusing to enforced the EO’s, using slander and libel to stop people from questioning them, violate FOIA laws, then you don’t want to be convinced by the facts Steve Haner.

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