The Legislature must clarify the Oregon governor’s authority to issue emergency orders in a public health crisis.

Gov. Kate Brown has been issuing orders curtailing the freedoms of Oregonians with no expiration date. Does that sound right to you?

Willamette University Professor Paul Diller wrote about the issue on his blog. Willamette Week did a story about it.

One way to think about what’s going on is to look at the example of Oregon City. Oregon City Mayor Dan Holloday had talked about about reopening businesses in his city before Gov. Kate Brown lifted her “Stay Home, Save Lives” executive order. Attorney General Ellen Rosenblum responded by sending him a letter on April 24.

If you were to try to sum up what Rosenblum wrote, it was basically: Don’t do it or you will be in trouble. “The governor has authority under ORS 401.165(1) to declare a state of emergency when she determines either that an emergency has occurred or is imminent,” Rosenblum wrote. “The type of emergencies covered under this authority expressly include diseases. The governor declared a state of emergency on March 7, 2020, through Executive Order 20-03, in response to the threat to public health and safety caused by the spread of COVID-19. The governor has not terminated that state of emergency. Nor has the Legislative Assembly.”

The letter goes on to say the governor has powers to protect public health including to control or limit entry and “movement within and the occupancy of premises in any public area subject to or threatened by a public health emergency if such actions are reasonable and necessary to respond to the public health emergency.” Violating the executive order could lead to criminal or civil penalties, Rosenblum wrote.

According to news reports since that letter was issued, Oregon City will be following the governor’s order. So, debate over? Not really.

Gov. Brown’s executive orders do basically what similar governors’ orders have done in other states — shut down schools and almost all businesses. The difference is the Oregon governor is not clearly compelled by law to periodically justify continuing them. Brown’s initial declaration of an emergency actually included a 60-day limit. That means it will expire in the second week of May unless she renews it. If she didn’t renew it, the orders she issued related to it — such as Stay Home, Save Live — would also expire. But if she renewed it, the other orders would presumably stay in effect indefinitely because that’s the way they were written.

Oregon has two statutes covering such issues, as explained by Diller. One is the one that Rosenblum mentioned in her letter. That one has no expiration date. The second more recent statute describes authority the state has during a public health crisis and has a renewable 14-day limit on orders issued.

So which one takes precedence? It’s not crystal clear. Diller wrote that the more recent statute generally takes precedence. But the more recent statute also does not say it limits the governor’s authority in the first. Another legal consideration, though, is what would be the point of putting the limit in the second statute if it is not important?

Nothing we have written should be taken as justification for violating the governor’s executive orders. If there was a time when a governor needed the power to issue emergency orders, it is now. Brown has been explaining why she has continued the emergency. But there is a lack of clarity in the law that the Legislature should address. If the state of Oregon is going to deprive residents of essential freedoms, it is not outrageous to suggest — even during a public health crisis — that there be a legal requirement to regularly renew the justification.