This is the best summary and evaluation of the letters sent by Rep. Dan Sullivan and other legislators to Dr. Nate Smith of the ADH decrying the lack of legislative oversight for the actions taken by Governor Asa Hutchinson during the coronavirus crisis.
From JD Haigler:
If this movement is to go big, and make a serious point, it behooves us to be educated and the understand the ins and outs of this situation. We can argue the effectiveness of the mask all we want, and we should, but where the legal action resides is the unconstitutionality of these orders the Governor is firing off through his Secretary of Health. People have their opinions on masks, and we only need to present enough evidence to say it’s questionable either way, and certainly questionable enough that it shouldn’t be mandated. The meat of the problem, however, is that our Legislators have not been involved.
This is a bit of a read, but again, I want to make sure this information is available to you all. The last thing we need is to be both presented as crazy people and have evidence to support it.
The below images are 2 different letters that Representative Dan Sullivan sent to Dr. Nate Smith, the first last week and the last a few hours before the mandate was announced. I went through both of these letters and did my best to convert the legalese to laymans terms. Be educated, be informed. A workman needeth not be ashamed.
Letter 1
The authority of the Governor to dictate law through the Department of Health is being challenged as of the 8th of July. It’s for actions like these that we not only re-elected Representative Dan Sullivan to the Arkansas Legislature, but got him upgraded to the Senate.
This letter was held somewhat close to the chest, and as Senator-Elect Sullivan has said a few times, don’t worry if your local Rep or Senator isn’t one of the signatories, it’s entirely possible they didn’t know about it. It’s a four page letter with a lot of legalese but I want to point out a few things it does specifically.
On page 1, Paragraph 2, the letter clarifies that it is Not contesting the Governor’s right to issue ‘appropriate’ executive orders, and in the first paragraph it references the articles and abilities the Arkansas Constitution whereby grants those powers.
The letter references Executive Order 20-03 several times. You can view Executive Orders on the Governor.Arkansas.gov website. 20-03 was issued on March 11th. Incidentally, between March 11th and now, we’ve gone from order 20-03 to 20-42. Anyways. 20-03 is a 2 page document and half of it is a lot of “WHEREAS” to justify the reason for the document. However, in paragraph (1), it immediately dictates that “The Arkansas Department of Health shall act as the lead agency to work in concert with the Arkansas Division of Emergency Management and other State agencies to utilize state resources and to do everything reasonably possible to respond to and recover from the COVID-19 virus.” This and the next 4 paragraphs lay out who all and what all will work with the DoH going forward. But the DoH is essentially the end all, be all at this point.
Going back to the letter, Paragraph 2 references EO 20-03 and says that they’re not questioning the Governor’s power to issue ‘appropriate’ executive orders, but “Rather, it is the unchecked authority to issue ‘orders’ in EO 20-03 purportedly authorizing the Secretary of Health to issue orders”. It clarifies that under the Administrative Procedures Act that the Secretary of Health is limited to issuing “Rules”, not “Orders”, and that the Secretary of Health must follow the APA in order to issue those Rules. The Secretary of Health, incidentally, is currently Dr. Nate Smith.
That’s the setup. What are the specifics that this letter is addressing? The “Unchecked Authority to Issue ‘Orders’?”
1. A requirement of the APA is generally 30 days notice to implement a rule, but in emergencies that can be waived. However, they must state in writing their reasons for that decision.
2. Secondly, “an agency shall not file an emergency rule with the Secretary of State for adoption until the emergency rule has been approved under 10-3-309”, and said approval requires Legislative involvement, specifically the Executive Subcommittee of the Legislative Council.
3. Thirdly, it references 25-14-204(c) in that an emergency rule may only exist for 120 days, meaning that 20-03 should have expired July 3rd.
4. Last but not least, “All rules promulgated pursuant to this subsection shall be reviewed by the House Committee on Public Health, Welfare, and Labor and the Senate Committee…”.
None of this has happened. All of this has been bypassed or ignored. Licenses have been stripped, mandates promulgated and fearmongering has ensued while the 2 man executive branch of Asa Hutchison and Dr. Nate Smith run rampant and unchallenged. Until now.
The letter closes with a reference to a Wisconsin Supreme Court case earlier this year in which they held that an administrative agency (such as a Department of Health) can have some regulatory authority but only under the established oversight such as a Legislative committee. The quote that rings home is “Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. It grants power to the federal government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency.”
I appreciate Senator-Elect Dan Sullivan as he pursues this. I appreciate those who have signed on with him, Representatives Miller, Bently, Meeks, Speaks, Gazaway, B. Smith, Cloud and Senators Rice, M. Johnson, Hammer, Stubblefield, and Caldwell. This is what we elected these legislators for. This letter went out the 8th, and I’m excited to see where it goes from here.
Letter 2
Last week, I looked at a 5 page letter Senator Elect Dan Sullivan sent to the Secretary of Health, Dr. Nate Smith. It detailed four violations that Dr. Smith’s “orders” or “directives” committed, per the Administrative Procedures Act that grants the power for agencies such as the Arkansas Department of Health to issue “rules”, not orders. All four violations revolve around the requirements of Legislative involvement and overview, none of which have happened.
A week has passed and today, two things happened. Senator Elect Sullivan sent a follow up letter (images below) to point out that Agencies shouldn’t be ignoring Legislative involvement, and secondly, the Governor had the ADH fire off another “order”, this time a Mask mandate statewide. Rather than involve the legislature as Arkansas law demands, Governor Asa Hutchinson is bound and determined to realize a dual monarchy between him and Dr. Nate Smith.
This is in spite of the fact that new deaths per 100k have dropped from 0.23 (1 out of every 500k) to .16 over the last four weeks. It’s in spite of 5,044 of the 30,297 cases being outside of general population, or employees working with that population (3,693 are prison inmates/personnel, the 1,351 are nursing home residents/employees).
It’s also in spite of the fact that just a few weeks ago, he dropped an ordinance allowing Cities to pass their own mandates (Again, constitutionally questionable, but not as egregious), which recognized the difference in severity across the state. But that wasn’t enough.
The Governor says this is in response to Legislators request and requests of frontline health personnel. I can’t attest to the second, but I know plenty of our legislators were not consulted, have had no chance to represent their constituents, and there has been no special session called since this started in order to handle these issues. So by Legislator request, he must be referring to a couple of buddies he calls up sometimes, rather than by Legislator request in the form of a bill that has passed both the House and the Senate the way this country was designed to work.
State Senator Bob Ballinger released a video very quickly, even from vacation, talking about how masks have got some use in close quarters over prolonged period of times, and only as a protection to others. HOWEVER, a statewide mandate that does not involve the legislature is a “Huge overstep”, and that we’re in a territory where “Peaceful Non-Compliance” isn’t out of the question.
The Governor says he’s responding to requests for this. Make sure our voice is heard too. Reach out to his office. Leave comments on their posts. Make sure that social media comes alive in uproar over this. This must stop. The Legislature needs to be brought in before this continues further.
That’s the end. This is where we’re at. Thanks for making it this far.
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