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Merry Monday before Christmas,
Friends, stop whatever nonsense you’re doing right now and take a look at Kate Brown’s self-described ugly mask. Click the link. Look closely at the photo of Brown. That photo – the design of the, uh, mask, the resigned look in her eyes indicating she knew it was a bad idea, the fact that the photo exists at all – is the perfect image for Oregon’s pandemic Christmas.
To the stuff.
Someone finally said no to Kate Brown
For the first time since Covid reared its ugly head that someone or something with authority has stood up to Kate Brown. The legislature has been more than happy to let her do as she wishes; courts have sided with her on lawsuits challenging her rules; the vast bulk of Oregon media has been in lockstep with her regulations, if not pushing for more strenuous measures. Now, the U.S. Supreme Court, if only indirectly, forced her to change her approach, and she’s none too happy about it. She doesn’t even want us to know about it.
Legally speaking, Oregon’s capacity limit for religious gatherings was doomed as soon as the U.S. Supreme Court issued its Roman Catholic Diocese decision, which struck down a New York order with stricter capacity limits on religious than secular facilities. Oregon’s rules were about the same as New York’s, so they were pretty obviously unconstitutional.
At 3:55 pm last Friday, the state sent an email to “faith leaders,” oh so reluctantly informing them that the Oregon Health Authority issued new Covid guidelines for faith-based gatherings which shifted capacity limits for faith-based gatherings from “mandatory” to “recommended.” Here are the new guidelines.
This is a smart move by the Governor. It avoids an inevitable, costly and likely unsuccessful court fight. It also ensures that churches aren’t treated worse than REI or Trader Joe’s or state-sanctioned liquor stores, which is both constitutionally appropriate and fair. But this is one of those cases where we can learn much more about how the decision was announced than the actual content of the decision. Consider:
1. The email to “faith leaders” was from Sophorn Cheang, whose title is “Director of Diversity, Equity and Inclusion, Co-Coordinator of the Racial Justice Council, Office of Governor Kate Brown.” I’m sure Ms. Cheang is a perfectly nice person, but think about the implications of someone with her title being tasked with outreach to “faith leaders.” Oregonians of faith are a minority interest group requiring outreach in the name of “diversity, equity and inclusion.” Let that sink in.
2. Ms. Cheang’s email indicates that it was sent at 3:55 pm Friday. There was no press release from the state, as there have been about minutiae related to Covid regulations in the past. This is not minutiae. The state tried to bury this change, even though it impacts many Oregonians who would like to attend religious gatherings.
3. There has been, as far as I can tell, no media coverage of the change. Consider if a court had stricken down Oregon’s rules – there’d be lots of coverage. Well, Oregon just conceded the same point, and enacted a change that could impact the lives of many Oregonians (though perhaps not very many reporters or editors). I’m not a journalist but, golly, this seems like a story to me!
The Oregon monarchy
We’ve been in a state of emergency since March and the Governor just extended her emergency declaration again.
Brown has also called a one-day special session of the legislature to deal with some Covid-related stuff, including providing liability protections for school districts if they reopen, as hoped, next year. Here’s the thing, if the legislature can convene (which it can, much as Congress and other state legislatures have through much of 2020), there is no need, or at least not as much need, for the state of emergency to continue.
The purpose of giving chief executives emergency powers is to let them make decisions when it’s impossible, due to an emergency, for the legislative body to vote and, well, legislate. Back in March when we didn’t know much about the virus, it was appropriate for the Governor to exercise emergency power. Now, it’s not. The legislature, as we’re seeing today, can meet and can perform its constitutional functions. It’s scheduled to do so again in its regular session in January.
Yet the emergency declaration endures. Why? Well, because it suits the people who run this joint, naturally. The Democrats who run the legislature are more than happy to let a term-limited Governor make decisions keeping schools closed, restraining individual liberty and closing businesses. Legislating requires votes on difficult issues by members in districts . Better to let the Governor, who is term-limited and won’t again face voters, call the shots and take the lumps.
The perpetual emergency declaration allows Brown to wield power at a whim, with no transparency, no public involvement, no bipartisanship, no moderation and no electoral check. Oregon’s state government is a temporary (one hopes) monarchy in all but name. And it remains so largely because it’s expedient for the people in power.
This is not the way Americans are governed. One person cannot for long periods of time substitute her will for the will of the people and their elected representatives. We need our lawmakers to make the laws. The result may be the same – or it may not. Either way, voices from around the state would be involved in trying to resolve the most pressing issues before us.
Open schools!
It seems like Oregon may be inching, sloooooowly, toward reopening schools. As I mentioned above, today’s legislative session includes a bill to limit lawsuits against teachers and schools. Over the weekend, The Oregonian urged the Governor to “put schools on path to in-person instruction.”
Research has long indicated that schools are not a major source of Covid transmission, and that keeping schools closed is really, really bad for kids. Oregon is one of only seven states that is keeping some or all schools closed.
If government schools and their employees feel the need for liability protection in order to open, fine. It’s worth noting, though, that businesses and their owners and employees have no such protection.
Every day Governor Brown keeps schools closed represents willful infliction of additional harm on Oregon’s kids. This is urgent and necessary and slow-walking a “path” toward reopening is not good enough.
Open the schools!
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Have a great weekend!
Jeff Eager
jeff@eagerlawpc.com
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What I do:
EagerLaw PC – A business and real property law firm in Bend, Oregon.
Insite LGA Corp. – A campaign consulting, strategic communications and local government monitoring firm.
Waste Alert – Local government monitoring for the solid waste and recycling industry.