Q&A of the Day – Are emergency declarations by Florida’s officials being abused?
Each day I’ll feature a listener question that’s been submitted by one of these methods.
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Today’s entry: Has the Florida legislature actually passed laws about face masks or are these orders being given with one single signature? How can you make laws punishable by fines? Or imprisonment without actually passing a law?
Bottom Line: One of the key questions brought about by stay-at-home orders, what the definition of an essential business is and mandating wearing of masks in public places, among others, has been...is it legal? Something to remember about the law. People break it all the time, enforcement is the difference between laws that matter and those that don’t. As an example, all use of marijuana in Florida – including all medicinal forms – is illegal. Marijuana is a schedule one drug according to the federal government. But without enforcement within the state of Florida, lawlessness and a violation of the supremacy clause of the US Constitution occurs. I cite this example because it’s instructive of a slippery slope of picking and choosing which articles of the Constitution a state decides are important. Once you have state sanctioned violations on Constitutional law on one issue, what’s to say that others won’t ensue? Like the issue of executive authority.
Here’s what Florida’s statutes state pertaining to Emergency management powers of the Governor-
The Governor is responsible for meeting the dangers presented to this state and its people by emergencies. In the event of an emergency beyond local control, the Governor may assume direct operational control over all or any part of the emergency management functions within this state, and she or he shall have the power through proper process of law to carry out the provisions of this section.
Pursuant to the authority vested in her or him the Governor may issue executive orders, proclamations, and rules and may amend or rescind them. Such executive orders, proclamations, and rules shall have the force and effect of law.
A state of emergency shall be declared by executive order or proclamation of the Governor if she or he finds an emergency has occurred or that the occurrence or the threat there of is imminent.
Here’s basically what that says. If the Governor identifies an emergency, it can be declared and he is able to enact emergency measures. Generally undefined emergency measures. This model is also the basis for most counties and municipalities in South Florida. So, to directly answer your question. The Florida legislature previously passed the existing law enabling broad emergency measures to be used, however it’s simply been a pen stroke of the governor and mayors which have instituted the policies such as mandatory masks in certain public settings, etc. The larger question is one of whether these broad authorities are constitutional. We’re welcome to our opinions but the only ones which are legally binding exist in the legal system. In order for the answers as to if broad emergency measures enacted during the pandemic are constitutional, a legal challenge would have to be made and won in court. That takes money and time and doesn’t change immediate policy – right or wrong.
This is a reminder that elections have consequences. All of the them and often it’s the ones closest to you geographically which have the biggest impact on your day-to-day life.