There has been a lot of confusion in recent months regarding quarantine, face mask requirements and other issues. Such issues have stemmed from the spread of a coronavirus. The situation prompted many governors to issue state executive orders. Unfortunately, some people misguidedly believe such orders have the force of law. They don’t. It is important to understand the difference between a governor’s executive order and a law.
It’s also important to be careful when choosing online sources for research. Clicking a Wikipedia link isn’t really the way to go. In fact, I checked out what the site had to say on this topic. Sure enough, one of the first lines in the Google search page snippet stated that executive orders have the force of law. It’s not that simple.
State executive orders are proclamations
When a governor issues an executive order, he or she is issuing a directive. It is a proclamation. There has been no input from the legislative or judicial branches of government. In such cases, the governor in question is making a general policy statement. He or she is not creating a law.
The purpose of state executive orders is to persuade and encourage other government officials to agree with and adhere to the policy statement. Note that the purpose is to persuade and encourage. Persuasion and encouragement are not legally enforceable. To state this another way, a governor’s executive order does NOT have the force and effect of law. Most importantly, governors may issue executive orders to governing officials, NOT to citizens.
Compliance is typically expected, not legally obligated
When governors issue state executive orders, they expect those within the governing body to comply. Get that? They “typically expect compliance,” as in, they consider non-compliance “poor form.” This is where it gets complex. Within the state governing body, if the head of an agency doesn’t comply with an executive order, the governor can remove him or her from the position.
In certain circumstances, governors may issue state executive orders that have operational effect. Such orders may have the force and effect of law. For instance, if a governor declares a state of emergency, then issues a curfew, it is legally enforceable. Such an order would be issued to governing officials, but would affect citizens because law enforcement officers would be acting in accordance with the order to make an arrest if someone violates the curfew.
In 1980, the Pennsylvania case of Pagano v. Pennsylvania State Horse Racing Commission, the court ruled that, when governors issue state executive orders without proper authority, the orders are not legally enforceable. You’ll also want to duly note that there is no mention of executive orders in state Constitutions (or in the U.S. Constitution, for that matter). Governors (and presidents) have justified their legal use of such orders because of certain implications in Article II of the U.S. Constitution and similar articles in state Constitutions.
State laws are made through a specific process
The process for creating state laws is similar to the process for creating federal laws. A Primary Sponsor introduces a bill in his or her own chamber, meaning, either the Senate or House of Representatives. The bill receives a legislative number and the Speaker of the House submits it to the committee for review. Interestingly, anyone can write a bill. Yes, anyone. However, only a member of Congress may introduce the bill, hence, the need for a Primary Sponsor.
If the chamber calls the bill for a First Reading, the process continues. To summarize, the bill typically passes through various committees, readings and revisions. It may ultimately make it to a governor’s desk, where he or she will either sign it into law or veto it. It’s really a much more complicated process than I’m describing here, but this file provides further detail, if you’re interested.
Executive orders are not laws
As you can see, state executive orders are vastly different from laws. To recap: Governors (or presidents) issue such orders to other governing officials. They are proclamations intended to promote certain policies. Executive orders are not issued to citizens although such orders may indirectly affect citizens. Executive policy proclamations are legally enforceable ONLY in certain circumstances (under operational effect).
Peaceful protest versus rioting
There is a lot of unrest in the United States at this time. Sadly, it took a mere virus (and a group of profit-hungry, corrupt, powerful people) to turn our lives upside down. If someone age 50 or beyond were to randomly turn on a TV news broadcast, he or she might think it was a re-broadcast from the 1960s. Now, more than ever, it’s critical that we, the people, know our rights and how to protect them.
Rosa Parks defended her rights by refusing to give up her seat on a bus. She did not trash the bus, light it on fire or shoot the passengers or driver. Now, more than ever, we need to develop our skills for peaceful discussion. Just because Ms. Parks defended her rights, it didn’t mean she did not value the life of every person, white, black or other. If we hope to protect our freedom and to promote Civil Rights (which protect ALL citizens) we must first understand those rights. Learn the difference between executive orders and laws. Remember that there are laws that protect your right to PEACEFUL protest. Also, remember that being paid to be a professional rioter or promoting anarchy are not conducive to PEACEFUL protest.
Moving on in life
I’ve always taught my children to leave a place better than they found it. I’m usually talking about cleaning up after themselves. However, I believe the statement is pertinent to current events in our nation. None of us can live forever, and we must each decide what our contribution will be to future generations. We can’t all be Constitutional lawyers, but we can study and learn as much as we can so we know fact from fiction. We can each do our best to be productive, peaceful citizens who are grateful for the sacrifices of those who came before us and built our great country.