Normally when we hear the two words “Coronavirus Rules” it is coming from someone who is wants stronger more invasive rules or it is coming from someone who is sick of their liberties being trampled.
Don’t worry. This article is not about what rules should or should not exist.
This article only looks at a complaint by legislators who say many of Arkansas’ Coronavirus Rules are not being adopted in a legal manner. The complaint was made by state Representative Dan Sullivan along with other members of the House of Representatives and Senate. The complaint was in the form of a letter to Dr. Nate Smith, the Arkansas Secretary of Health, about his failure to follow emergency rule making procedures.
Governor Asa Hutchinson declared an emergency because of the Coronavirus which triggered emergency powers under the “Arkansas Emergency Services Act of 1973.”[i] Sullivan’s letter does not question the Governor’s power to issue emergency orders. Instead his issue is the Governor purportedly giving Dr. Nate Smith, the Arkansas Secretary of Health, an unlimited and unrestricted power to issue health “orders” concerning the Coronavirus. (An example of such a rule would include the Secretary’s rules on the procedures a church must follow and what signs must be posted in a church concerning the Coronavirus.)
Sullivan points out that the “orders” of the Secretary meet the definition of a “rule”[ii] under the Administrative Procedure Act and therefore must comply with that law’s rulemaking procedures.
You may be thinking … “but this is an emergency, we don’t need to get hung up on complicated procedures.” Well guess what, the legislature already thought of that a long time ago and specifically included a minimum procedure for emergency rules. The law allows emergency rules to skip notice and hearing requirements. All that is needed for an emergency rule to become effective is for a majority of the members of the Executive Subcommittee of the Legislative Council to approve the emergency. The subcommittee only approves the existence of the emergency and not the content of the emergency rule. The subcommittee doesn’t even have to meet since a majority of the membership can just sign off on approval of the emergency.[iii] Nothing hard about that.
If that small step is all that is missing then why are Representative Sullivan and other legislators concerned? They are concerned because there is a bit more to it. An emergency rule lasts for only up to one hundred twenty (120) days. The agency cannot just keep refiling an emergency rule over and over again to avoid requirements for public notice and comment and review by the legislature.[iv]
Some of the Secretary’s “orders” (rules) are approaching the 120 day limit. And if the Administrative Procedure Act applies, then notice, public comment, and legislative review should be kicking in to protect the public from a prolonged emergency rule.
The letter sent to Dr. Nate Smith didn’t make any demand. It didn’t include any threats. It just informed Dr. Smith of the requirements of emergency rules under the Administrative Procedure Act.
There is a distinct possibility Governor Hutchinson will direct his Secretary to ignore the letter and keep on cranking out rules without oversight. It was only a few weeks ago that Governor Hutchinson told two other agency heads to ignore a legislative committee’s request to address the committee about agency actions related to the Coronavirus. Not only did the Governor tell his agency heads to ignore the committee, he then picked a different legislative committee and said he would allow his agency heads to talk to that committee instead.
What happens if the Governor tells Dr. Smith to ignore the legislators. What happens if he claims his emergency power trumps even the law on adopting emergency rules? Is there a next step? Will there be a lawsuit?
Sullivan and the other legislators were very careful to only address this one issue on adoption of agency rules and did not question the Governor’s authority for his emergency orders. But if it were to come to a lawsuit, we think there is far more at stake than just Health Department rules.
As we said in “Can Businesses Rely on Asa’s Immunity Proclamation? Don’t count on it.” we think the Governor is overstating his authority under the Arkansas Emergency Services Act, and even if his power under that law was really as broad as is being claimed we think it would amount to an unconstitutional delegation of legislative authority.
You may be for more stringent rules or for less stringent rules, but either way it is important to ensure the rules are adopted pursuant to law, and that standards of good government (which includes the opportunity for public comment and opportunity for legislative oversight) are restored.
Whatever your opinion on particular Arkansas’ Coronavirus Rules, we hope you will tell your state Senator, state Representative, and the Governor to follow procedures to maximize public input and legislative oversight.
[ii]A.C.A § 25-15-202 (9)
[iii]A.C.A § 10-3-309 (d)
[iv]A.C.A § 10-15-204 (c)