Questions About Holcomb Edicts
by Margaret Menge
A rebellion is brewing in Indiana over the governor’s shutdown orders, with more than 100 people planning to rally on Saturday at 3 p.m. outside the governor’s mansion in Indianapolis. A second group is calling for a protest outside the Statehouse on Monday and a third group is planning a protest for May 1.
“Our premise is that we want the economy open and we want it open today,” said Andy Lyons, organizer of the Saturday protest. “And, the other common theme is that the governor’s cure is worse than the virus.”
Lyons, a teacher in Marion, Indiana, says he was alarmed when he saw that Gov. Eric Holcomb said the state would give so-called “non-essential businesses” a warning if they hadn’t closed; the second time would give them a cease-and-desist order; and the third time they would face jail time or the loss of their license.
“I just went, No, that cannot happen in this country. This cannot happen in this country,” he said. “You are telling people that we don’t care about your livelihoods, we don’t care about private property rights, we don’t care about the idea of mutual exchange, the idea of free association. We’ve taken away virtually all the responsibility of the people to make decisions and you’ve thrown it into the hands of government.”
Lyons started a Facebook page on Friday night at 6:15 p.m., two days before Easter, and five days later, the page — called “Protest Government Overreach! Indiana Governor’s Mansion!” — had 1,016 members.
The focus of most posts on the page is the right of the people to assemble, with several posters quoting Article 1, Section 31 of the Indiana Constitution: “No law shall restrain any of the inhabitants of the State from assembling together in a peaceable manner, to consult for the common good; nor from instructing their representatives; nor from applying to the General Assembly for redress of grievances.”
On March 16, Holcomb issued an executive order requiring restaurants to close their dining rooms and switch to only drive-thru, carry-out and delivery, and also requiring the postponement of all elective surgeries. The only law cited in the order as giving the governor the authority to do this is the state’s Emergency Management and Disaster Law (IC 10-14-3). But this law contains no language indicating the governor can require the closure of some or all businesses or restrict what services businesses can offer.
On March 19, Holcomb issued an executive order stating that no eviction or foreclosure action be initiated during the state of emergency, citing the Emergency Management and Disaster Law again, this time citing a specific provision in that law having to do with “controlling the occupancy of premises in the disaster area.” But would a court really interpret the law to mean that the entire state of Indiana could be considered a “disaster area,” thus giving the governor the power to control occupancy of every home and apartment in the state?
On March 20, he issued an executive order changing the date of the primary election from May 2 to June 2, again citing the state Emergency Management and Disaster Law. The primary election date is set by state law.
Steve Sanders, a constitutional law professor at Indiana University’s Mauer School of Law, took a look at the order and the Emergency Management and Disaster Law and says he doesn’t think the governor had the authority to change the primary on his own.
“A governor, as a general rule, cannot suspend the operation of statutes; the legislature would have to do so,” he wrote in an e-mail message. “Agreement of the political parties and the Sec State may provide political cover, but is not legal justification.”
He described the legal reasoning in the governor’s order as a “fog of words.”
On March 23, Holcomb issued the first Stay-at-Home order, which took effect on March 24 at 11:59 p.m., ordering everyone living in the state to “stay at home, or in their place of residence” and requiring all businesses in the state, except those that are essential, “to cease all activities within the state.” The order also prohibited gatherings of more than 10 people.
The order spelled out specific conditions under which people were permitted to leave their homes. They include activities and tasks related to health and safety, for essential work, to purchase needed supplies, for outdoor activity and to care for others.
The order also required people to maintain a distance of 6 feet.
It is breathtaking in its scope and in its prohibition on the movement and activity of the more than 6 million people in the state of Indiana.
Only one elected official of the governor’s own party has had anything to say about it.
On March 16, State Representative Curt Nisly (R-Elkhart) wrote a letter to Gov. Holcomb, which he posted to his Facebook page, asking him to rescind the order that restaurants and bars close their dining rooms.
“Your ill-considered executive order to close restaurants and bars is going to end up causing more problems than it solves because you’re depriving business owners and workers of desperately needed income to cover necessities of life, to pay other bills, or to pay for things to care for their children,” he wrote. “And again, you will be depriving Hoosiers of their lawful right to assemble in a peaceful manner.”
Nisly told told The Indiana Policy Review this week that he doesn’t think the governor has the power to require anyone to stay at home, or to close businesses, or do anything similar.
“My opinion is that these executive orders are not binding on anybody other than the members of the executive branch. So if we choose to follow them, that’s our choice, but if we choose to not follow them, it doesn’t matter,” he said.
But, he said, it matters now because the governor has threatened business owners with jail and/or loss of a professional license if they remain open after being told to close, saying this consequence means “a line is crossed.”
Nisly said he didn’t receive a response to his letter from the governor, and is considering attending the protest on Saturday and also the one on Monday.
As of Wednesday, there were 436 deaths in the state from Covid-19, and 8,527 total cases.
Many cities in the state are almost ghost towns, and a wave of business failures is expected if the lockdown extends into next month.
Daniel Conkle, another constitutional law professor at the IU Mauer School of Law, says as long as the executive orders don’t discriminate on the basis of content, they are “clearly within the governor’s powers,” while noting that the orders have been “very, very damaging for churches.”
“It’s a tragic situation, at the same time you have this overpowering concern about people dying,” he said.
Jim Bopp, the famed First Amendment lawyer from Terre Haute, referred to the government’s “compelling governmental interest” in stopping the pandemic, which the U.S. Attorney General’s office cited this week in a statement to the court in support of the Mississippi church that was forbidden to hold a drive-in church service.
“It’s a really tough standard to comply with, and that’s why he raised it,” Bopp told The Indiana Policy Review. A highly contagious disease like Covid-19 would meet that standard, he says.
But he hinted that there may be problems in Indiana with the way orders have been applied.
“I just passed the parking lot at Target and, it’s full of cars,” he said. “There had to have been hundreds of people in there. Well, why can’t a church do the same thing? If it is true . . . [that] churches can’t have more than 10 people in them, how can Target have hundreds? That would be discrimination, if that were true.”
People aren’t always shoulder-to-shoulder at church services, he noted.
“I go to St. John’s, downtown, and it’s a big church. You could certainly have a couple of hundred people in there that were 6 feet apart. They’re saying you can’t have more than 10 in a church, then they’re treating the church differently, adversely, and of course that’s the opposite of what you have to do under the Constitution.”
On April 6, Governor Holcomb extended the Stay-at-Home order until April 20, and is expected to decide by Friday whether it should be extended beyond the 20th.
Lyons says the Saturday and Monday protests will proceed as planned unless all shutdown orders are lifted and all business activity in the state is allowed to resume as normal, something he said he’s not expecting to happen given that Holcomb said in his press conference on Monday, April 13 that we are only in the “first quarter” of responding to Covid-19, with the second quarter involving tracking of people who’ve been sick.
“It’ll be a rolling re-open,” Holcomb said at Wednesday’s press conference. “It won’t be all at once. It won’t be flicking a light switch.”
The Saturday protest, says Lyons, is meant to send a direct message to the governor.“He’s basically telling us we have to stay in our homes, so we should be protesting at his,” he said. “And that really is the justification. And that is part of the reason why that’s what I chose . . . Because if that’s the way we’re going to play the game, then that’s where we’re going to be symbolically.”
Margaret Menge, a veteran journalist now residing in Bloomington, has reported for the Miami Herald, Columbia Journalism Review, InsideSources, Breitbart, the New York Observer and the American Conservative. She also worked as an editor for the Miami Herald Company and UPI. Menge wrote this for The Indiana Policy Review.