COVID-19 and Executive Authority under the Oregon Constitution

The 2022 edition of Oregon Constitutional Law features the most recent case law and analysis on current constitutional issues, such as the Governor’s authority to act during the COVID-19 epidemic. Following are two excerpts on this topic:


From chapter 2, “The Religion Clauses” by Charles F. Hinkle and Crystal S. Chase:

§2.2-3(c)(5)          Restrictions on Public Religious Gatherings

In 2020, restrictions on public gatherings were imposed by Governor Kate Brown and other officials in response to the COVID-19 pandemic. These restrictions were challenged in several cases in both state and federal courts, some of which involved claims that the restrictions violated the plaintiffs’ rights under Article I, sections 2 and 3, of the Oregon Constitution. As of the date of this publication, the only such case that had reached Oregon appellate courts was Elkhorn Baptist Church v. Brown, 366 Or 506, 466 P3d 30 (2020). This was a mandamus proceeding arising from an action in Baker County Circuit Court, in which several churches and others challenged the validity of executive orders issued by Governor Brown on the ground, among others, that the orders “interfered with their ability to practice their religion.” Elkhorn Baptist Church, 366 Or at 519. The trial court issued a preliminary injunction “‘prohibiting [the] Governor from enforcing any and all orders issued in response to the pandemic.’” Elkhorn Baptist Church, 366 Or at 519 (quoting the relief requested by the plaintiffs; brackets in original). On mandamus review, the supreme court directed the trial court to vacate its preliminary injunction without reaching any issues under the religion clauses of the state and federal constitutions. Elkhorn Baptist Church, 366 Or at 543.


From chapter 19, “Constitutional Odds and Ends” by Hon. Jack L. Landau and Nora Coon:

§ 19.5-1      Executive Authority Generally: Enumerated Powers

In contrast with the federal Constitution, which vests executive power in the single office of the President, state constitutions commonly “unbundle” executive authority among a number of officials of the execu­tive branch. See generally Christopher R. Berry & Jacob E. Gersen, The Unbundled Executive, 75 U Chi L Rev 1385 (2008). Oregon’s consti­tution follows that pattern, by allocating executive authority among the Gover­nor, the Secretary of State, and the State Treasurer. See Or Const, Art V (Governor); Or Const, Art VI (Secretary of State and State Treasurer).

While the state legislature has plenary power, subject to constraints imposed by federal law or the state constitution, powers of the executive branch are limited to those enumerated in the constitution or granted by the legislature. In Elkhorn Baptist Church v. Brown, 366 Or 506, 466 P3d 30 (2020), for example, the issue was the source of authority for the Governor’s executive orders imposing various restrictions on public activ­ities in response to the COVID-19 pandemic. The Governor claimed authority to issue the orders under legislation authorizing her to take such action in the case of emergencies. The plaintiffs argued that the authority granted under those statutes was limited, permitting the Governor to issue emergency orders only for limited periods of time. See Elkhorn Baptist Church, 366 Or at 522 (describing the circuit court’s ruling in the plaintiffs’ favor on that point). The Oregon Supreme Court accepted the premise that the Governor’s powers were limited to those granted by the statutes and the constitution. Elkhorn Baptist Church, 366 Or at 525–26. Nevertheless, the court concluded that the time limits that the plaintiffs invoked did not apply to the orders at issue in that case. Elkhorn Baptist Church, 366 Or at 537. See also State ex rel. Dewberry v. Kitzhaber, 259 Or App 389, 401, 313 P3d 1135 (2013), rev den, 354 Or 838 (2014) (a statute grants the Governor authority to execute gaming compacts between the state and Native American tribes).

Although Article V, section 1, provides that the “cheif [sic] execu­tive power of the State, shall be vested in a Governor,” that does not mean that executive power cannot be delegated to other officials of the executive branch. Woodard v. Rasmussen, 73 Or App 689, 692, 700 P2d 675, rev den, 299 Or 583 (1985), cert den, 475 US 1021 (1986) (“the Governor and legislature can constitutionally delegate executive authority to various agencies for the efficient conduct of the state’s business”).


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