Balance of Power

Defining and balancing the powers of government

Defining the Powers of the Governor to Address Emergencies

Common Sense for Oregon is leading an effort to develop an amendment to the Oregon Constitution which will more clearly define the powers of the Governor, the Legislature, and County Commissioners in addressing emergencies.

The coronavirus pandemic, also knows as COVID-19, is one example of an emergency affecting Oregon. Governor Kate Brown has overreached her authority in issuing 37 executive orders related to the pandemic between March 8, 2020 and August 16, 2021. The Governor has used her short-term emergency powers over an extended period to issue these executive orders that have had extraordinary consequences for Oregonians.

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One of the most devastating effects caused by these executive order is the toll school closures and online learning has taken on our youth, both on their mental health and their ability to learn. Another devastating consequence of the executive orders is economic harm to Oregonians and Oregon businesses. Business closures and capacity limits have especially impacted our small businesses and most vulnerable workers who find themselves unemployed or underemployed.

Governor Brown, in issuing these executive orders, is not considering the differences in local communities, and not involving the Legislature or County Commissioners in her process. This draft constitutional amendment is meant to redistribute emergency powers between the Governor, the Legislature, and the local County Commissioners.

Draft Constitutional Amendment

Emergency Powers Limitations

The People of Oregon adopt the following new Section to be added to Article I of the Oregon Constitution:

a. The Governor has no inherent power to declare an Emergency as to any matter, except where a statute specifically authorizes such a declaration.

b. Any declaration of Emergency by the Governor shall specify the county or counties where the Emergency exists, so as to apply an Emergency declaration, and the reason or reasons for the declaration of Emergency.

c. Any declaration of Emergency may implement or apply existing state powers and funding but shall not create or implement new powers or funding, and shall not expand the jurisdiction or authority of any government agency or institution.

d. Any declaration of Emergency, and authority and actions thereunder, shall not exist for more than 30 days after the date of the declaration of Emergency, except as provided in subsection (e) below.

e. In each county subject to a declaration of Emergency by the Governor, upon the expiration of the initial 30 days of Emergency, the county commissioners of the subject county, by majority vote, may extend the Emergency, for that county, by 30 calendar days. The Emergency declaration shall cease to have legal effect for that county after these 30 calendar days have passed, unless the county commissioners again vote to extend the Emergency for that county by another 30 calendar days.  The county commissioners for a county subject to an Emergency declaration may vote to continue the Emergency declaration in successive 30-day extensions.  The county commissioners, in voting to extend a declaration of Emergency, shall not expand the authority and powers under the original declaration of Emergency, but may choose to reduce the authority and powers as they apply to their county.

f. The Governor shall not use any instrumentality of state government, nor any state funding, as a method to retaliate against any county whose commissioners choose not to fully continue the emergency provisions beyond the initial 30 days.

g. The Governor shall not avoid the limitations of this Section of the Constitution by issuing any new declaration of Emergency, as to any matter or situation reasonably related to the original declaration of Emergency, until at least one year has passed after the original declaration of Emergency.

h. The Legislative Assembly, by resolution passed by a majority vote of the House and a majority vote of the Senate, may terminate any declaration of Emergency by the Governor. Such resolution is effective without approval by the Governor.  Upon passage of such resolution, the Governor shall not have the power to issue a new declaration of Emergency, as to any matter or situation reasonably related to the terminated declaration of Emergency, until at least one year has passed after the passage of the termination resolution by the Legislative Assembly.

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Governor Kate Brown has issued 37 executive orders relating to the coronavirus pandemic between March 8, 2020 and August 16, 2021. 

The following is a synopsis of these 37 executive orders.

List of Executive Orders Related to COVID-19

The Governor found that the novel infectious coronavirus has created a threat to public health and safety and constitutes a statewide emergency. The Governor noted that COVID-19 presents a high potential public health threat. The Governor directed the Oregon Health Authority and the State Public Health Director to take all actions necessary and authorized under state law to respond to, control, mitigate, and recover from the state of emergency, including but not limited to deploying emergency volunteer health care professionals, designating emergency health care centers, creating and requiring the use of diagnostic and treatment guidelines, and issuing guidelines for private businesses regarding appropriate work restrictions. The Order contained additional provisions authorizing agencies to take action. The Order declared that the state of emergency shall exist for 60 days from the date of the Executive Order unless extended or terminated earlier by the Governor.  The Order was entered on March 8, 2020.

This Executive Order, entered on March 12, 2020, noted that the Oregon Health Authority had made recommendations based on which the Department of Human Services imposed restrictions and protective measures to limit visitors to long term care facilities to only essential personnel. The Order noted that the World Health Organization had announced that COVID-19 is a global pandemic. The order noted that, in order to slow the spread of the disease, and to protect Oregonians who are at highest risk for contracting the disease, the Governor found that immediate implementation of social distancing and community mitigation measures are necessary. Accordingly, the Governor prohibited large social, spiritual and recreational gatherings of 250 people or more, statewide; described the prohibited gatherings to include, but not be limited to, community, civic, public, leisure, faith-based, and sporting events, concerts, conventions, fundraisers, and any similar events or activities if a distance of at least (3) feet between individuals cannot be maintained. In that Order, the Governor directed that it did not apply to school attendance, places of employment, grocery stores, or retail stores. The Governor ordered that, beginning March 16, 2020, any person found in violation of the order is subject to the penalties described in ORS 401.990. The Order was stated to remain in effect until April 8, 2020.

Executive Order 20-06.

 

On March 17, 2020, the Governor entered a third Executive Order relating to the coronavirus pandemic. The Governor reiterated the recognition that there was a high potential public health threat to citizens of Oregon due to respiratory disease from the novel coronavirus, which has the potential to cause serious illness or loss of life. The Governor recognized that the World Health Organization had declared the pandemic a public health emergency of international concern. The Governor recognized an abnormal disruption of the market where the emergency prevented ready availability of essential consumer goods and services. Accordingly, the Governor provided that persons who believe that they had been subjected to unconscionably excessive prices for essential consumer goods due to this disruption should report that conduct to the Oregon Department of Justice. This Executive Order was designated as remaining in effect for 30 days.

The Governor reiterated her earlier actions in Executive Orders. She stated the intent to slow the spread of COVID-19 to protect Oregonians who are at highest risk for contracting the disease, and to help avoid overwhelming local and regional health care capacity. She found that immediate implementation of social distancing and community mitigation measures are necessary. She stated an intention to reduce person to person interaction with the goal of restricting transmission. Accordingly, she ordered that restaurants, bars, taverns, brew pubs, wine bars, cafes, food courts, coffee shops, clubs, “or other similar establishments that offer food or drink” may not offer or allow on-premises consumption of food or drink. She ordered that this prohibition apply statewide.

 

The Governor further ordered that establishments may offer food or drink for off-premises consumption or for delivery. As to such establishments, she required that they implement social distancing protocols of at least three feet between customers ordering, waiting, or in line. She also ordered that establishments must implement similar social distancing protocols for staff, whenever possible. She allowed exemptions for health care facilities, childcare facilities, workplaces, essential government buildings, essential emergency response facilities, essential school-based food programs, and essential shelter and meal programs serving vulnerable populations.

 

The Governor also prohibited social, spiritual, and recreational gatherings of 25 people or more. She required that this prohibition be applied statewide. This Executive Order rescinded Executive Order 20-05, prohibiting large gatherings, and replaced it with the directives of Executive Order 20-07. This Executive Order went into effect on March 17, 2020 and was placed in effect through April 14, 2020. The Governor ordered that the Executive Order be considered a public health law and that it may be enforced with any person found to be in violation of the Executive Order to be subject to the penalties described in ORS 401.990.

The Governor ordered that all public schools be closed to students from March 16, 2020, through April 28, 2020.  The Governor ordered that public schools continue to receive allocations from the State School Fund, as if they were actually in session during the closure period.   

 

The Governor ordered that public school meal programs continue, and that the schools provide for supplemental services and emergency management services, such as provision of childcare for first responders, emergency workers, and health care professionals.

 

The Governor also ordered that public schools continue to regularly pay all employees of public schools, and public schools may require their employees to report to work to assist with the provision of supplemental services and emergency management activities. The Executive Order also provided that the Early Learning System Director was directed and authorized to waive, suspend, or amend existing administrative rules pertaining to childcare, and to establish requirements for emergency childcare. Finally, the Executive Order provided that the directives in the Executive Order shall have the full force and effect of law, and any existing laws, ordinances, rules, and orders shall be inoperative in the extent that they are inconsistent with the Executive Order. This Order was entered on March 17, 2020.

 

This Executive Order, entered on March 19, 2020, ordered that Oregon colleges and universities maintain academic continuity with students by conducting courses through remote and online learning. The Governor ordered that colleges and universities be prohibited from conducting in person classroom, laboratory, and other instruction from March 21, 2020, through April 28, 2020. She provided an exemption to colleges and universities providing clinical, laboratory, or other in person instruction associated with courses required for the completion of health care related certificates, licenses, or degrees, or other certificates, licenses, or degrees, that are essential to emergency response and resiliency efforts, where no remote or online alternative is practicable. The Governor ordered that colleges and universities limit on-campus operations only to critical functions and shall employ social distancing measures, consistent with guidance from the Oregon Health Authority, for all on campus employees and residents. In what is a pattern for these Executive Orders, the Governor again provided: “the directives set forth in this Executive Order shall have the full force and effect of law, and any existing laws, ordinances, rules and orders shall be inoperative to the extent they are inconsistent with the exercise of the Governor’s emergency powers.”

The Governor found that personal protective equipment (PPE) is essential to diagnosing and treating COVID-19 and in caring for individuals with COVID-19. The Governor found that there is a severe shortage of PPE in Oregon and across the nation. To conserve PPE and other health care resources for the State’s COVID-19 emergency response, the Governor directed that, no later than March 23, 2020, all elective and non-urgent procedures across all care settings that utilize PPE, including but not limited to, hospitals, ambulatory surgery centers, outpatient clinics, dental clinics, and veterinary clinics, shall be cancelled. The Governor defined procedures or surgeries that would be exempt from these limitations. The Executive Order provided that it is effective immediately and remains in effect for 90 days. This Order was entered on March 19, 2020.

 

The Governor found that people being evicted from their homes creates an additional risk for the transmission of COVID-19. The Governor ordered that law enforcement officers in Oregon were prohibited from serving, delivering, or acting on any notice, order, or writ of termination of tenancy or the equivalent or any judicial action, that relates to residential evictions for non-payment. The Order, entered on March 22, 2020, was effective immediately and remains in effect for 90 days.

The Governor indicated that some Oregonians are not adhering to social distancing guidance provided by the Oregon Health Authority. The Governor ordered that nonessential social and recreational gathering of individuals outside of a home or place of residence are prohibited immediately, regardless of size, if a distance of at least 6 feet between individuals cannot be maintained. The Governor ordered those individuals are prohibited from patronizing businesses that are closed pursuant to this Executive Order.

 

The Governor ordered that when individuals need to leave their homes or residences, they should at all times maintain social distancing of at least 6 feet from any person who is not a member of their immediate household, to the greatest extent possible. The Governor stated that failure to comply with any of the provisions of this Executive Order “constitutes an imminent threat and creates an immediate danger to public health.”

 

This Executive Order also prohibited the operation of a list of businesses. This extraordinary list of businesses specifically included amusement parks, aquariums, arcades, art galleries, barbershops, hair salons, bowling alleys, cosmetic stores, dance studios, esthetician practices, fraternal organization facilities, furniture stores, gyms, fitness studios, hookah bars, indoor and outdoor malls, indoor party places, jewelry shops, boutiques, medical spas, facial spas, day spas, and nonmedical massage therapy services, museums, nail and tanning salons, nontribal card rooms, skating rinks, senior activity centers, ski resorts, social and private clubs, tattoo/piercing parlors, tennis clubs, theaters, yoga studios, and youth clubs.

 

The Governor provided that indoor and outdoor malls are not prohibited from operating to provide food, grocery, health care, medical, pharmacy, or pet store services. The Governor authorized the Oregon Health Authority to determine if additional business closures are necessary. The Governor exempted grocery, health care, medical, or pharmacy services from the closures ordered by this Executive Order.

 

The Governor also ordered all businesses and nonprofit entities with offices in Oregon to facilitate telework and work at home by employees to the maximum extent possible. The Governor ordered that work in offices is prohibited whenever telework and work at home options are available. The Executive Order also contained several restrictions on government office operations. The Order allowed childcare facilities to remain open if they met specific limitations described in the Executive Order, but otherwise ordered those childcare facilities be closed.

 

The Governor also ordered that all public and private campgrounds be closed. The Governor authorized the Oregon Parks and Recreation Department to close any property or facility when proper social distancing cannot be maintained. The Governor ordered the immediate closure of all pools, skate parks, outdoor sports courts, and playground equipment areas. This Executive Order also directed individuals to minimize travel, other than essential travel to or from a home, residence, or workplace. All of the directives in this Executive Order were applied statewide, as has occurred in all these Executive Orders.  The Executive Order was effective immediately when issued on March 23, 2020, and indicated that it remains in effect until terminated by the Governor.

The Governor indicated that further action is necessary to prevent termination of residential leases and the initiation of eviction proceedings during this emergency. The Governor ordered that landlord of residential properties in Oregon shall not, for reason of non-payment, terminate any tenant’s rental agreement or take any action to implement residential evictions. The Governor also ordered those landlords of nonresidential properties in Oregon shall not, for reason of non-payment, terminate any tenants lease or take any action to interfere with a tenant’s right to possession of the leased premises. The Order, entered April 1, 2020, was effective immediately and remains in effect for 90 days.

This Executive Order, entered on April 7, 2020, changed the termination date of Executive Order 20-07, which prohibited on-premises consumption of food or drink. Under this new Executive Order, Executive Order 20-07 remains in effect until terminated by the Governor.

Executive Order 20-15.

 

This Executive Order, entered on April 7, 2020, eliminated the termination date in Executive Order 20-06 and instead provides that Executive Order 20-06 remains in effect until terminated by the Governor. The only limitation is that the Governor periodically notify the Attorney General that the abnormal disruption of the market continues to exist.

The Governor found that, during this emergency, public meetings should be held via telephone, video, electronic or other virtual means, whenever possible, to keep Oregonians safe and to mitigate the spread of COVID-19. The Governor ordered that public meetings of government bodies be restricted to meetings by telephone, video, or through some other electronic or virtual means, with minimal exceptions. The Governor modified the publication notification requirements as to public meetings, and authorized municipal corporations, to make reasonable expenditures for the continued operation of the municipal corporation, despite other restrictions that may exist. The Governor modified provisions as to hearings relating to tax supervising and conservation commissions and made other modifications to public hearing requirements. The Order, issued April 15, 2020, was effective immediately and remains in effect until terminated by the Governor.

 

This Executive Order modified Executive Order 20-09 to prohibit colleges and universities from conducting in person classroom, laboratory, and other instruction from March 21, 2020, through June 13, 2020. The Order was issued on April 17, 2020.

The Governor noted that eligible Oregonians will soon receive CARES Act recovery rebate payments. The Governor found that these payments are needed by vulnerable Oregonians to help pay for housing, food, medical, and other essential needs.  The Governor ordered that all CARES Act Recovery Rebates shall be exempt from garnishment.  The Executive Order contains some exceptions as to judgments in criminal actions that require the defendant to pay restitution or civil judgments against persons who have been convicted of criminal offenses. This Order was issued on April 17, 2020 and remains in effect until terminated by the Governor. 

The Governor found that continued restrictions on the provision of childcare are necessary to preserve public health and safety. This Executive Order extended the restrictions on licensed childcare facilities set forth in Executive Order 20-12. It also extended and expanded the Early Learning Division’s authority to provide childcare facilities to provide emergency childcare services and other necessary services, in light of the needs of the ongoing public health emergency. This Order was entered on April 23, 2020.

The Governor ordered, pursuant to her powers as Superintendent of Public Instruction, and her emergency powers as Governor, that public schools and private schools are prohibited from conducting in-person classroom instruction during the effective period, designated as April 28, 2020, through June 30, 2020. The Executive Order contains detailed directives to public schools as to how they should operate and how they should continue to provide certain services. This Executive Order replaced the directives of Executive Order 20-08. This new Executive Order was entered April 23, 2020.

The Governor indicated that Oregon is at the point where it is possible to gradually resume elective and nonurgent medical procedures. The Governor ordered that elective and nonurgent procedures across all care settings that utilize PPE, shall not occur unless they meet the requirements of this Executive Order. The Governor ordered that on or after May 1, 2020 elective and nonurgent procedures across all care settings that utilize PPE are allowed, but only to the extent they comply with guidance or administrative rules issued by the Oregon Health Authority. The Governor continued her delegation of authority to the Oregon Health Authority to provide guidance regarding limitations and screening requirements for visitors to hospitals and ambulatory surgical centers. This Executive Order rescinded Executive Order 20-10 and replaced it. This Executive Order was entered on April 27, 2020.

This Executive Order noted that Executive Order 20-03 declared a state of emergency due to the COVID-19 outbreak in Oregon. It noted that Executive Order 20-03 was issued on March 8, 2020, and declared a statewide emergency for 60 days, through May 7, 2020. The Governor found that the novel infectious coronavirus continues to threaten public health and safety and remains a statewide emergency. The Governor extended the state of emergency for an additional 60 days through July 6, 2020. This Executive Order was entered on May 1, 2020.

This Executive Order establishes baseline requirements for reopening as well as a statewide phased reopening process. This reopening process included limits on gathering sizes for faith-based activities as well as social and recreational gatherings. It also limited food and drink from being served on-premises. This order also continued the closure of many businesses in Oregon including amusement parks, barber shops and hair salons, gyms and fitness studios, indoor and outdoor malls, and many others. Any business that was not explicitly mentioned was directed to follow OHA guidance. This Executive Order also outlined phased reopening by county in Oregon. This Executive Order was entered on May 14, 2020.

This Executive Order rescinded and replaces Executive Order 20-25 and provides baseline requirements for the phased reopening of Oregon as well as guidelines for counties in Phase I and Phase II. The Executive Order restates all the closures from Executive Order 20-25. This Executive Order was entered on June 5, 2020.

This Executive Order gives guidance for public and private universities’ plans for reopening in the fall. This Executive Order requires all colleges and universities to follow minimum standards laid out by the Oregon Health Authority. It also requires that a written plan be developed for each university by September 1, 2020. This Executive Order was entered on June 12, 2020.

Rescinds and replaces Executive Order 20-20. Outlines the Ready Schools, Safe Learners: K-12 Instructional Activities, which outlines the steps and guidelines for all K-12 schools in Oregon, public and private, necessary for reopening. It restricts in-person instruction to following the guidelines of the Oregon Health Authority. It also requires a written plan submitted to the Oregon Department of Education no later than August 15, 2020, or the beginning of the school year, whichever is first. This Executive Order was entered on June 24, 2020.

This Executive Order extends Executive Order 20-03 another 60 days through September 4, 2020, unless extended or terminated earlier by the Governor. It rescinds Executive Order 20-13 (Temporary Evictions Moratorium) and Executive Order 20-18 (Protecting CARES Act Payments). This Executive Order was entered on June 30, 2020.

This Executive Order extends House Bill 4204’s Mortgage Foreclosure Moratorium until December 31, 2020, due to the COVID-19 State of Emergency. This Executive Order was entered on August 31, 2020, effective immediately until December 31, 2020.

This Executive Order extends Executive Order 20-03 for an additional 60 days, through November 3, 2020 unless extended or terminated earlier by the Governor. It also rescinds Executive Order 20-16 (Public Meetings and Local Government Operations). This Executive Order was entered September 1, 2020.

This Executive Order puts a Temporary Eviction Moratorium in place, restricting landlords’ ability to evict residents due to nonpayment, without cause, or any other reason. This order is effective September 30, 2020 through December 31, 2020.

This Executive Order outlines enhanced health and safety requirements for certain employer-provided housing during the agricultural off season in response to the COVID-19 outbreak. This Executive Order outlines the sanitation protocols and safety measures that should be followed for employer-provided housing. This Executive Order was entered on October 23, 2020.

This Executive Order extends Executive Order 20-03 and the COVID-19 State of Emergency. This Executive Order extends the State of Emergency to January 2, 2021. This order was entered on October 27, 2020.

This Executive Oreder places a temporary freeze on the reopening process due to the increase in COVID-19 cases. The Executive Order outlined limitations such as limits on gatherings, businesses, and workplace restrictions. The Order was entered on November 17, 2020 and is effective November 18 through December 2, 2020 unless extended or terminated earlier by the Governor.

This Order introduces risk and safety framework for the county-by-county approach to controlling the spread of COVID-19. The Order rescinds and replaces Executive Orders 20-27 and 20-65. It also establishes risk level metrics that indicate the spread of COVID-19 and the safety of reopening the county. The Executive Order was entered on December 2, 2020.

This Order was the fifth extension of Executive Order 20-03 and the COVID-19 and State of Emergency. This extends the Executive Order an additional 60 days through March 3, 2021 unless extended or terminated earlier by the Governor. The Executive Order was entered on December 17, 2020.

This is the sixth extension of Executive Order 20-03 and the COVID-19 State of Emergency. This order extends the State of Emergency through May 2, 2021, unless extended or terminated earlier by the Governor. This order was entered on February 25, 2021.

This Executive Order orders public schools to offer fully on-site or hybrid in-person instruction while still requiring all schools to continue to comply with health and safety protocols to control COVID-19. This order rescinds and replaces Executive Order 20-29. Schools were ordered to offer full in-person instruction or hybrid instruction by March 29, 2021, for all K-5 schools and by April 19, 2021, for grades 6-12. The order also provides guidance for schools to operate safely in-person. This order was entered on March 12, 2021.

This is the seventh extension of Executive Order 20-03 and COVID-19 State of Emergency. The State of Emergency is extended an additional 60 days through June 28, 2021, unless extended or terminate earlier by the Governor. Executive Orders 20-06 and 20-15 are rescinded in this order. This order was entered on April 29, 2021.

This order extends House Bill 2009’s Mortgage Foreclosure Moratorium until September 30, 2021. This order was entered on June 11, 2021.

This Order rescinds Executive Order 20-66 (County Risk Framework), Executive Order 20-22 (Non-urgent Healthcare Procedures), Executive Order 21-06 (K-12 Schools), Executive Order 20-28 (Higher Education), Executive Order 20-19 (Childcare Facilities). This Executive Order effectively rescinds COVID-19 Executive Orders and supports the vaccination of individuals. It rescinds these orders on either June 30, 2021 or when 70% of Oregonians 18 and older have received at least one dose of the COVID-19 vaccine, whichever is earlier. This order was entered June 25, 2021, and effective immediately until December 31, 2021 unless extended or terminated earlier by the Governor.

This order requires the COVID-19 vaccination for the state executive branch. It requires all employees of the state executive branch to be fully vaccinated by October 18, 2021 or six weeks after the date that the US FDA approves the COVID-19 vaccination, whichever is later. This order was entered August 13, 2021.

This order extends House Bill 2009’s Mortgage Foreclosure Moratorium until December 31, 2021. This order was entered on August 16, 2021.

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