In my pursuit of a better theology/philosophy of God and government, it occurred to me that an investigation into the mechanisms of government would be more easily accomplished by addressing a particular question. In this case, I was interested in what legal authority the governor has to shut down the state and what kinds of mechanism are in place within our state legal structure for enforcing such a law. (And if you quibble with the word law there, I’m using it as an umbrella term to cover things like mandate, statute, rule, regulation, etc…)
I am not a legal expert so this should be considered a layman’s interpretation. But, laws should be written in such a way that a layman can understand them. Also, I am not here commenting on the wisdom of a stay at home order, the seriousness of Covid-19, etc… I have been interested in fleshing out my theology/philosophy of God and government for a while now, and rather than start with the abstract I thought it would be fun to start with something specific. And then I read this, so thought I’d shamelessly copy.
When Governor Parsons made a public announcement that Missouri would have a “stay at home” order, the text of the document, which can be found in full here, stated:
The Director of the Department of Health and Senior Services, finding it necessary to protect public health and prevent the further spread of COVID-19, pursuant to the authority granted under section 192.020, RSMo, and 19 CSR 20-20.040, hereby order the following
So the 2 sections of law cited reside in the legal authority of the Department of Health and Senior Services and are sections 192.020, RSMo and 19 CSR20-20.040, respectively. The document is also signed by Randall Williams, Director of the Missouri DHSS, so it is actually his authority that was used for the order. However, the director is appointed by the governor, so the decision is ultimately his. Below is one of these sections in its entirety and just the introduction of the other:
192.020. To safeguard the health of the people of Missouri — certain diseases to be included on communicable or infectious disease list. — 1. It shall be the general duty and responsibility of the department of health and senior services to safeguard the health of the people in the state and all its subdivisions. It shall make a study of the causes and prevention of diseases. It shall designate those diseases which are infectious, contagious, communicable or dangerous in their nature and shall make and enforce adequate orders, findings, rules and regulations to prevent the spread of such diseases and to determine the prevalence of such diseases within the state. It shall have power and authority, with approval of the director of the department, to make such orders, findings, rules and regulations as will prevent the entrance of infectious, contagious and communicable diseases into the state.
CSR 20-20.040 Measures to Determine the Prevalence and Prevent the Spread of Diseases which are Infectious, Contagious, Communicable, or Dangerous in their Nature. PURPOSE: This rule defines investigative and control measures for reportable diseases and establishes who is responsible for them.
So a couple of things to note. First, I underlined in section 192.020 what I thought was the pertinent sentence. This pretty well gives the department of health and senior services the authority to enforce orders to stop the spread of a disease in Missouri. The second section actually delves into the specifics of what the control measures are. Because that section is so long, I will have to pick and choose a little what matters, but you can find the whole section here:
(1) The director shall use the legal means necessary to control, investigate, or both, any disease or condition listed in 19 CSR 20-20.020 which is a threat to the public health
That seems all well and good, but it implies that not all means are legal. In other words, just because the director of the health department wants to do something, he can’t. It has to fall within the category of what is “legal”. It would be interesting to see where a conflict might come into play. In section 2, the appropriate authority is charged to respond to the report of an infectious disease and a list of 10 things to do (labeled A-J). I won’t reproduce all, but 2 appear to apply the most:
(E) Establish and maintain quarantine, isolation or other measures as required;
(G) Establish appropriate control measures which may include isolation, quarantine, dis-infection, immunization, closure of establishment, notification to potentially exposed individuals to make them aware of the risk or potential risk of the disease and such information required to avoid or appropriately respond to the exposure, notification to the public of the risk or potential risk of the dis-ease and such information required to avoid or appropriately respond to the exposure, the creation and enforcement of adequate orders to prevent the spread of the disease and other measures considered by the department and/or local health authority as appropriate disease control measures based upon the disease, the patient’s circumstances, the type of facility available, and any other available information related to the patient and the dis-ease or infection
Based on the underlined portion of the above section, I believe that the Missouri Stay At Home order is legal. I did notice some things when reading through these sections that are worth highlighting, and then I have a few concluding thoughts. First, the emphasis on responding to an infectious disease is on quarantining the diseased person/place, not the healthy ones. And my guess is that was the original intent, but it’s written broadly enough that quarantining healthy people falls within its parameters. Secondly, I think there’s an emphasis on biological warfare (or the intentional spreading of a disease) so I’m wondering if these guidelines have been updated following the increase of terrorism in our world, such as 9/11. Neither of those observations changes the legality of the stay at home order, I’m just sayin’.
Now on to some thoughts. We live in a very complex civilization and we often forget that there is a host of rules and regulations governing aspects of society that we don’t ever think about. There are food and drug laws, health department laws, environmental laws, etc… The state of Missouri has 16 executive departments, each with a hefty set of rules and regulations. On the one hand, it does seem like each one of these is valid and needs written parameters for their authority. On the other hand, it would be pretty easy to fall into a legal “pit” of which you were not even aware. An abundance of laws usually indicates an abundance of law-breakers or an abundance of despotism. Does the sheer weight of the number of laws negate the possibility of liberty?
Our country balances rival powers via a system of checks and balances. In the case of health department rules, I’m not sure what the check on their power is except for the voice (and possibly compliance) of those under its jurisdiction. In this case, the governor would authorize the department of health to make such an order with the understanding that if it is incredibly unpopular he will lose the next election (or possibly be recalled). I suppose the citizens of Missouri could just refuse to comply and see what happened, as it would be hard to imagine mass arrests of people who want their hair cut (for example). In the end, is this an example of how the government gets its rightful authority from the consent of those being governed?
In America, it really does matter what state you live in. In this case, the laws of Missouri gave the governor (via the health dept) the authority to enact a stay at home order, while it appears that the governor of Idaho did not have that authority. I would encourage folks from other states to look into their own laws if for no other reason than to understand the way their state government operates.
Lastly, when I say that the Stay At Home order for Missouri is legal, I am ignoring the possibility that it could conflict with the Constitution, which is the ruling document of our land. I have yet to think through that issue, but it is a pertinent issue as various layers of government have had to modify their laws based on their incompatibility with the Constitution. More on God and government in future posts.