It’s nice to be operating under the new Safer at Home directives from the Governor and having some of our retail opened up; but many of us are still feeling hamstrung with no way to get a haircut or go to the gym. Those of you who know me well understand that while I am with you on the haircut – not going to the gym is not really hurting me at all. However, I wanted to address a few things – especially some recent social media and walking trail discussions regarding what is and is not law and what is and is not constitutional or within the power of the Governor or Mayor etc to actually enforce. Keep in mind that I am not an attorney, nor do I posses more than an Associate’s Degree in Pre-Law and Bachelor’s in Political Science/Public Admin – yeah exactly – but I am quoting and retelling what has come to us from the Governor and Attorney General of Alabama’s offices.
It is understandable to have unhappy feelings regarding the orders from the Governor, the President, and those that trickle down to Mayor and council level. But as much as we all – and it is all of us – are ready for life to get back to normal, we need to stay calm and adhere to the directives and orders from the Governor’s office and our civic leaders during the pandemic period. We all hope that the curve has/will be flattened and this virus will cease being a global threat soon. And when that information is proven to be the case, no one in your local government, and I believe in your state government, wants any further retraction of commerce, or of the ability to work or the ability to pursue life, liberty and happiness.
One of the burning questions or strongest statements being made is that the restriction of opening your business, moving about town, etc is unconstitutional and that it cannot be enforced. I would say to you that – it is certainly not pleasant, but it is allowable. The President has issued a pandemic emergency order and has given the authority on the federal level to restrict commerce and some things such as travel, over to departments within the government. This is allowable and it is legal, because it is within his duty to protect and ensure public health and public stability. There is not a requirement as I have seen that he issue a Martial Law decree, which by definition would be so much worse than what we are experiencing. It is within his federal powers to ensure the health and welfare of the nation. And – in issuing his orders, he has made it clear that he has agreed with the states’ rights clauses of the US Constitution and other federal regulations – by stating the governors of each state should ( and they have the authority ) make their own determinations about closings, restrictions and etc.
This brings us to a second point – that Governor Ivey does not have the right to issue these orders or to enforce them. Please do not fall into this thought process. On March 21st, 2020, the Attorney General of the State of Alabama, Steve Marshall issued Guidance for Law enforcement in response to Governor Ivey and State Health Officer, Dr. Scott Harris, March 19th issuance of pandemic measures. This guidance was again updated following the Stay at Home orders issued on March 27th. In both of these directives from the AG, he comments on Regulation 420-1-2-.07(e) of the Alabama Administrative Code( the public health officer may adopt an emergency rule without notice or hearing if there is an immediate danger to public health) Working under this administrative regulation, the PHO has advised the Governor on matters involving public health. The Code of Alabama Administrative Code goes on to outline the ramifications for violating a state health decree – in section 22-2-14.
Local and state law enforcement must uphold the laws of the state of Alabama first, and then of their municipality second. No municipality has the ability to make an ordinance or law that infringes on the authority of a state law, as state law always supersedes any other, and federal supersedes state in most cases. However a municipality can and may enact on ordinance of a stricter nature. So all local police officers are charged with upholding the law of the state. And the AG issued 2 binding statements of legal opinion that the local and state authorities were acting within their legal duty to enforce executive decisions issued by the Governor. These orders are enforceable they are not violations of the US Constitution, nor the constitution of the state of Alabama. We may not like them, believe their basis in science, or agree with the policies of the elected officials that issue them, but they are legal and enforceable. Just like a speed limit or a noise ordinance.
On March 25th, 2020, Attorney General Marshall issued Guidance for municipalities, an opinion addressing the authority of a municipality in response to the shelter in place orders in Birmingham. Of note in this legal opinion, ALA Code 11-47-131 (1) addresses powers of cities when acting to “prevent the introduction of contagious, infectious, or pestilential diseases.” This section provides for councils, executives and all municipal decision making entities … may construct and develop and enact laws …. (Quarantine included) … as long as these laws are not inconsistent with the current directives and regulations of the state. He goes on two paragraphs later to state that current state “quarantine law” is paramount to any other law established in any other municipality based on Chapter 12 of the Code of Alabama. Then on April 8th the AG issued another guide for municipalities regarding use of power during a state of emergency, which remember has been declared by the President of the United States and the Governor of Alabama. The AG comments that municipalities are given specific powers under the Alabama Emergency Management acts ( in the state code 31-9-10(b) ) this authority gives the executive and legislative bodies in a city or town the ability to enact curfews, or to prohibit public gathering, to include conduction of business. A broad spectrum view, which we as citizens normally like for government to apply shows that this would certainly be legal.
And with regard to the Municipal code of Jasper itself, sec 2.2 of Ordinance 4-2-68 SS 1 states the emergency powers of the Mayor regarding proclamations and directives. “The Mayor has the authority to enact and require the police forces to enforce … curfews … order the closing of any business establishments anywhere within the city limits … designate areas of town as safe or unsafe zones… public streets and parking areas may be closed to any and all traffic motor or pedestrian … and may call upon any auxiliary law enforcement to keep the peace in upholding edicts and orders.” The Alabama Code gives the Governor basically the same authority, with the addition of being the commander of the Alabama National Guard.
A business operates as a privilege, thus the requirement to purchase and be approved for an annual business privilege license from the city. Most professionals such as doctors, hairstylists etc are required to get a certification and privilege license from a state board regulating their industry. Without these licenses you cannot be in practice, operate your retail store or any business. If you do not secure these licenses, you may not operate your business and will be closed. A business is a privilege it is not a right … however it is the very fabric all government is supported by. It is the single most important thing to the life of the municipality, and the business owner is the key to successful economic growth and stability. No official would have any positive reaction to having to shut business doors for any period of time.
All of this is to say – nobody, not Mayor David O’Mary, not any of our 5 council members, not myself, The CFO of the City, the police chief, the fire chief and on and on – enjoys, is happy about, or likes the situation we are in. This administration has certainly proven to be business and economy centric. We want business operating, churches meeting on Sunday and people enjoying the freedoms we have all come to cherish. But please understand when you are reading social media posts or having discussions at the coffee table – nothing illegal has taken place, nothing unconstitutional is going on and law enforcement does have the right to act on violations. No one wants that, especially the city leadership.
Have a great week.
The City of Jasper is committed to providing a fair environment, conducive to business operations and revenue generations, for all businesses and people. As we have worked to have better enforcement we have also worked to provide better service and information. Please feel free to reach out to us at 385-7990, or if you have any questions or comments, please email them to firstname.lastname@example.org.