Fellow columnist Steve Spellman and now Northern District Boone County Commissioner Janet Thompson have both written op-eds about how health director Stephanie Browning’s stay-at-home order and other restrictions — closing nonessential businesses, social distancing, etc. — have helped Boone County and Columbia to minimize the impacts of the coronavirus that causes COVID-19.

No argument here.

Boone County’s 105 COVID-19 cases are easily outdone by St. Louis County, Jackson County and even Saline County. While it is understandable that the density of St. Louis and Kansas City would form a good breeding ground for the coronavirus, not so with Saline County, where the largest town is Marshall*, not exactly a place known for teeming masses. That county has the highest cases of COVID-19 per capita, exceeding that of St. Louis.

However, it is undeniable that, thanks to the actions of Director Browning, we have mostly escaped the most dire impacts of COVID-19. Her orders have been based on health and science data and have enabled us to remain relatively free of the most awful impacts of COVID-19.

Likewise, Gov. Mike Parson deserves accolades for his stay-at-home and other orders that have kept COVID-19 positive diagnoses and death rates fairly low.

But perhaps Director Browning and Gov. Parson both lacked the authority to do the good things they have done when responding to the effects of COVID-19.

I am not a constitutional scholar, but I can find nothing in either the U.S. or the Missouri constitutions that authorize the actions of governors nor local county and city officials. There is a law that enables Congress to allow the president to take actions in case of a national emergency, but Congress has passed no such law, and, from the statements of the president, it is apparent that he does not want such authority. He has made it very clear that such orders should be left up to the state governors, and — with a few exceptions, such as Iowa and South Dakota — the governors have done that.

Most notably, Gavin Newsom in California and Andrew Cuomo in New York have responded by shutting down interactions between individuals. The actions of Gov. Newsom seemed to have worked. Gov. Cuomo’s action were a bit late, but now, after a massive wave in New York City, things have settled down a bit and he has relaxed his orders in some areas of the state.

Now, a group of businesses have sued Director Browning on the basis that her extension of certain portions of her order were unwarranted, but the judge rejected the lawsuit.

The best I can tell, the businesses’ litigation did not address the constitutional issue. Nor have any other lawsuits, apparently. Attorneys must have decided that it is a losing issue or they don’t want to identify with the protesters wearing camo, waving flags (U.S. and Confederate) and toting guns.

No doubt, Director Browning’s and Gov. Parson’s orders were good ones. But, the question in my mind still remains: Were they legal?


About opinions in the Missourian: The Missourian’s Opinion section is a public forum for the discussion of ideas. The views presented in this piece are those of the author and do not necessarily reflect the views of the Missourian or the University of Missouri. If you would like to contribute to the Opinion page with a response or an original topic of your own, visit our submission form.

Ken Midkiff, formerly the director of the Sierra Club Clean Water Campaign, is now chair of the city’s Environment and Energy Commission and serves on the board of directors of the Great Rivers Environmental Law Center.

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