Court Finds That Governor’s COVID Order Violates the Law

In response to COVID, Gov. Northam recently issued an order shutting down “non-essential” businesses, which included shooting ranges. Did the Governor have authority to do this? A Lynchburg Circuit Court judge answered that question with a big “No,” allowing an indoor shooting range in Lynchburg to open back up for business.

The judge’s ruling enjoins the Governor from enforcing Executive Order 53 against the range. According to the letter opinion, “[t]he Governor appears to argue that, when he declares a state of emergency, he can ignore any law that limits his power, even laws designed to limit his power during a state of emergency…The Court cannot agree with such an expansive interpretation of the Governor’s authority.”

It seems the court was not impressed with the foundation for the Governor’s legal arguments, noting that “[i]t is regrettable the Governor only one time in a footnote cited the statute on which this case turns.” To my non-lawyer friends, this is a strong rebuke to find in a court opinion.

The court was not persuaded by the “intermediate scrutiny” constitutional analysis advanced in an amicus brief by law professors A.E. Dick Howard (UVA), Russell A. Miller (W&L) and Carl Tobias (UR), noting that a statutory analysis must also be considered and further indicating that the “[t]he Court declines to invent a level of scrutiny to circumvent the text in the statute.” Query: What do you think about law professors advocating for a particular interpretation in favor of the government and against small local businesses?

Another quote from the letter opinion that should not be overlooked: “But courts must apply the meaning of the text at the time it was adopted because failing to exercise this duty would render worthless the rights contained in the text.” (citing The Federalist No. 78, at 467 (Alexander Hamilton). The letter opinion is a good read, and the case is a reminder that lawyers are on the front lines protecting individual liberties and freedom.

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