This Article has been my "quarantine project," so to speak. I intend to submit this Article for publication at some point in the near future. Due to the fact that "Reopen NC" is gathering momentum and lawsuits are being filed against the Governor, I felt like it was an appropriate time to go ahead and post a draft version, just to get the argument out into the open. Certainly, there is more to research and more to say, as is mentioned toward the end of the Article. But for now, this is about as good as we can get. The Abstract is below.
Abstract:
The COVID-19 pandemic has caused incredible amounts of disruption to the American way of life. Governors across the nation issued emergency declarations to impose stark restrictions on economic activity to prevent spread of the virus. While many restrictions were enacted with bipartisan support, bans on dine-in restaurant service quickly became a partisan flashpoint. This Article traces the circumstances behind North Carolina’s emergency ban on dine-in restaurant service and explains the statutory authority that permitted the Governor to impose the restriction without the concurrence of the Council of State that his opponents claimed was required. The Article then shifts focus to pandemic preparedness and the North Carolina Emergency Management Act, urging the General Assembly to revise portions of that statute.
This revision is even more necessary because of a surprising conclusion: while the General Assembly has required the Council of State to agree to certain gubernatorial decrees, those assignments may be unconstitutional. While this is certainly an open question of state constitutional law, comparisons of the plain texts of North Carolina’s historical constitutions and considerations of how the constitutional text has evolved over the nearly two and a half centuries of North Carolina’s history demonstrate that the Council of State is not simply rendered impotent by the statute but may also be forbidden to act by the constitution. Given the number of statutes in which the General Assembly has awarded the Council of State a veto over the Governor, this Article suggests that this open question should be resolved outside the context of a state of emergency.
