As the constitutional dust from the COVID-19 pandemic settles, the picture of the governor’s powers during a public health emergency are increasingly clear.
New Mexico and federal courts have consistently backed Gov. Michelle Lujan Grisham’s authority to impose broad public health orders. And we agree that in the early weeks of the pandemic such authority was essential, given all we did not know about COVID-19.
But that was, quite literally, years ago.
The initial order 30-day order was issued on March 11, 2020. And the court challenges followed.
The state Supreme Court in August 2020 affirmed the authority of the state health secretary to restrict or close businesses.
In June 2021, the state’s top court ruled there is no constitutional or statutory requirement to compensate businesses for financial losses caused by emergency public health orders.
The Supreme Court also ruled in the governor’s favor in November 2021 when it halted citizen-led grand juries to investigate her handling of the pandemic.
Most recently, a dozen New Mexico plaintiffs who claimed they endured constitutional rights violations under public health restrictions have abandoned a lawsuit against the governor and state health officials after a federal magistrate judge dismissed most of their allegations.
Three lawsuits against Lujan Grisham and her public health orders are still pending in federal courts, but the writing is on the wall regarding the impotence of our partisan-bent Legislature, which has largely opted not to assert its legislative powers since March 11, 2020.
Our Democratic governor is no doubt pleased with the court outcomes and having an acquiescent Democrat-controlled Legislature. Our state representatives and senators have done zero to strike a sensible balance between protecting public safety and safeguarding the freedoms, rights and interests of constituents through the pandemic.
They instead have left New Mexicans to fend for themselves — including the pet food business in Rio Rancho, martial arts studio in Bernalillo and restaurant in Silver City that were all forced to close, and the member of an Albuquerque-based megachurch who said she was denied religious expression and suffered depression from social isolation. Ultimately, their lawsuits were unsuccessful; meritorious or not, they deserved to be heard by duly elected representatives rather than being forced to file lawsuits.
So here we are, July 2022 and still under the governor’s initial 30-day public health emergency that she’s reauthorized at least 30 times in two-plus years.
New Mexico has essentially been under single-person rule during this pandemic while the governor imposed some of the most restrictive and longest-running public health measures in the nation — halting in-person activity at private businesses deemed “nonessential,” forcing public and private schools to suspend in-person classroom teaching for about a year, shuttering businesses that reported multiple positive cases, mandating everyone wear face masks indoors and outdoors, and more.
While some measures were likely sound ideas based on the information available at the time, we are still left with the question why one person is still calling all the shots. This is supposed to be a representative democracy, and yet the governor has never had to justify her omnipresent public health orders because lawmakers have been too complacent/spineless to make her.
Yes, the state’s chief executive needs broad powers to act swiftly in response to a public health crisis. Erring on the side of caution in the early stages of the pandemic was prudent, and it could be again should new strains again threaten the state’s ability to deliver health care.
But at this point, it’s beyond time for the governor to explain why a public health emergency is still necessary. Just because the courts have upheld her emergency orders as legal doesn’t mean they should continue on forever.
This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.