Judge rejects effort to halt Cooper's pandemic shutdown powers

Posted August 11, 2020 3:06 p.m. EDT
Updated August 11, 2020 5:22 p.m. EDT

— A judge on Tuesday denied an injunction sought by Lt. Gov. Dan Forest to reopen sectors of the North Carolina economy that have been shut down for months to limit the spread of coronavirus.

Forest sued Gov. Roy Cooper, his opponent in the November election, last month, arguing that the governor needed to obtain consent from the Council of State, a group of 10 statewide elected officials that includes both Cooper and Forest, before issuing statewide emergency orders shutting down bars, gyms, entertainment venues and other businesses for months during the pandemic.

Part of state law seems to require concurrence, but Cooper's legal team has said other code sections allow him to act unilaterally in an emergency.

"The court finds no statutory language upon which it can base the limitation the lieutenant governor invites – to confine the governor's exercise of power under [the state Emergency Management Act] to only a local or regional area," North Carolina Business Court Senior Judge James Gale wrote in his 31-page ruling. "The language requires the opposite conclusion by suggesting that the governor must act beyond the confines of the local jurisdiction when 'the scale of the emergency is so great that it exceeds the capability of local authorities to cope with it.'"

Forest and other Republican leaders have questioned many of Cooper's actions during the pandemic and have pressed that he roll back his shutdown orders and allow businesses to reopen under restrictions designed to keep workers and customers safe.

Cooper began to ease the state-mandated restrictions in May, but he has twice extended "Phase 2" of the state's three-part plan to reopen businesses and resume social activities during the pandemic. The latest extension was made last week and runs through Sept. 11.

Lawmakers have also tried to force these businesses back open by passing legislation, including one measure that would more explicitly require the governor to get Council of State consent. Cooper vetoed those bills, however, and Republicans in the majority in the General Assembly weren't able to muster enough support from Democrats to overturn the vetoes.

"Governor Cooper has taken decisive action with health and safety measures to save lives," Cooper spokeswoman Dory MacMillan said in an email. "State officials should lead by example and work to protect North Carolinians instead of putting people’s health at risk."

Forest responded by noting that the court ruling puts Cooper on the hook for all of the fallout from the pandemic in North Carolina, from business closures and unemployment to locked down nursing homes and students taking classes online instead of in schools.

"Today, the the court ruled that Governor Cooper has 100% of the power during a declared emergency and can act unilaterally to deny freedoms to every North Carolinian. If Governor Cooper has 100% of the power, then he has 100% of the responsibility," he said in a statement.

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