In response to COVID-19, the mayors of Oklahoma’s three largest cities subjected their citizens to draconian shelter in place orders, restricting their freedom, damaging them financially, and undermining their constitutional rights. The mayoral decrees were more restrictive than those of the Governor, and in significant ways contradicted his policy. To this day, city-mandated social distancing rules remain in place in Oklahoma City, Tulsa, and Norman that are not required by the state’s reopening plan. The mayors claim that where their rules are more restrictive than the state’s, the city rules apply.
Was any of this unilateral mayoral activity legally valid?
For the reasons examined in my paper published today, An Argument Oklahoma’s Mayors Acted Unlawfully During COVID-19, the short answer is no. (A summary of the paper can be found here.)
A close examination of relevant city ordinances and state laws governing the mayors’ COVID-19 decrees forces the conclusion that the mayors were on extremely shaky—possibly nonexistent—legal ground. This is largely because the mayors issued their orders under city ordinances arising out of a state law intended to combat riots and looting, not pandemics.
This conclusion isn’t shocking given the name of the relevant state law, “The Riot Control and Prevention Act of 1968” (the RCPA). The law is a relic of the late 1960s’ social unrest brought on by racial tensions and the Vietnam War. American cities like Detroit burned in 1967 and 1968, and riots were a regular feature of Oklahoma news reports at the time.
More important than the laws’ history, the plain language of the RCPA and city ordinances reveal they are not applicable to infectious diseases or pandemics. The laws contemplate emergency government action during riots or in the wake of natural disasters (like extreme weather events) where rioting or looting might be a real threat. The mayors have shoehorned COVID-19 into the category of a natural disaster in order to justify their actions, which does not comport with the text of the city ordinances or the RCPA.
Similarly, if the RCPA and city ordinances were intended to apply to pandemics as the mayors claim, the authors of those laws chose an odd toolkit of emergency powers to confer on the governor and mayors. The RCPA gives the governor the power to do things like imposing a curfew, restricting alcohol and flammable liquids, and banning Molotov cocktails. The city ordinances are much the same. It is easy to see why the power to ban alcohol sales might be handy during a riot, but giving this power to the governor to fight a pandemic is a bit like giving him an accordion for a hunting trip.
Simply put, the mayors of Oklahoma City, Tulsa, and Norman overstepped their legal authority. The riot control law and city ordinances are not general emergency powers laws that can be trotted out to deal with just any challenging situation the state faces. They were intended to apply only in narrow circumstances, and it is a stretch for mayors to justify pandemic orders under these laws. My paper lays out the legal particularities in detail.
The consequence of the mayors’ overreach may be costly litigation. But litigation cannot repair the damage suffered by the residents of these cities (about 2/3 of the state’s population). The best that can be hoped for is swift action by state officials to end the current discrepancies between the state and local rules, and legislation to prevent this situation from happening in the future.
To end the current patchwork of rules, the governor and attorney general can take a firm position with mayors, making clear that to the extent city rules contradict state rules, they are legally invalid. An Attorney General Opinion following the analysis contained in my paper could be legally binding on the mayors, instantly resolving the state-local policy discrepancies. Even a non-binding legal opinion from the attorney general carries great weight, as seen when the mayor of Norman recently backed off restrictions on churches.
To prevent any future misapplications of emergency powers laws, the legislature can do two things: (1) codify existing Supreme Court precedent into statute, explicitly re-affirming that city ordinances inconsistent with state law are legally invalid; and (2) re-evaluate whether emergency powers statutes are even necessary to begin with. If COVID-19 has demonstrated anything, it is that when given extraordinary powers, government officials overreach. American society experienced emergencies before there were emergency response statutes, and there is little indication government lacked the authority it needed to respond appropriately.
As for the mayors, we have already seen constitutional litigation challenging their activities, and as my paper makes clear, additional statutory grounds exist that citizens could pursue in litigation. Litigation of this nature is an uphill climb for citizens, but the difficulty of succeeding with a claim does not excuse the mayors’ failure to adhere to the law. If the strongest legal argument justifying these mayors’ actions is that it’s hard for citizens to prevail in court, that is no defense at all. Elected officials are sworn to uphold the law, not to uphold the law only to the extent someone can successfully prosecute a lawsuit against them.
At a minimum, we should be asking questions of the mayors, and the mayors should be providing detailed explanations of the legal authority for their actions. The fact that they have not already done so reflects poorly on their administrations as well as their legal positions.
Benjamin Lepak is Legal Fellow at the 1889 Institute. He can be reached at [email protected].
The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.