Preemption: Executive Order by the Governor to Ensure a Safe & Healthy Georgia

JurisdictionGeorgia,United States
Publication year2020
CitationVol. 37 No. 1

PREEMPTION: Executive Order by the Governor to Ensure a Safe & Healthy Georgia

Marisa P. Ahlzadeh
Georgia State University College of Law, mahlzadeh1@student.gsu.edu

Fanny Chac
Georgia State University College of Law, fchac1@student.gsu.edu

PREEMPTION


Executive Order by the Governor to Ensure a Safe & Healthy Georgia: Preemption

Georgia Constitution: Ga. Const. art. III, § 6

Code Sections: O.C.G.A. §§ 38-3-51; 45-12-30

Executive Order: Ga. Exec. Order No. 04.02.20.01

Effective Date: April 2, 2020

Summary: The doctrine of preemption expresses the idea that "a higher authority of law will displace a lower authority of law when the two authorities come into conflict."1 Preemption exists on both the federal and state level. According to the Georgia Constitution, local laws are permissible if they do not conflict with the state law on the subject.2 During a Public Health state of Emergency, the Governor of Georgia maintains certain expanded powers to take necessary action for the health and safety of the public.3 On April 2, 2020, Governor Brian Kemp (R) used these expanded powers to enact an Executive Order that preempted local Georgia Orders related to the COVID-19 pandemic.4

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Introduction

Amidst chaos and fear, as the COVID-19 pandemic spread throughout the country and the world, leaders on the local, state, and federal levels faced the challenge of deciding how to best protect their citizens. On March 11, 2020, the World Health Organization designated COVID-19 a global pandemic as concerns about the virus surged across the nation, and the death toll surpassed 100,000 worldwide.5 Two days later on March 13, 2020, President Donald Trump (R) declared a national emergency to address the spread of COVID-19 in the United States.6 As the days passed and the virus continued to spread, President Trump issued Executive Orders regarding the allocation of medical resources and an Order designed to prevent the hoarding of medical supplies.7 Like the President's Executive Orders, leaders such as Georgia's Governor Brian Kemp (R) and local leaders such as Mayor Shirley Sessions of Tybee Island, Georgia, issued their own Orders to protect their citizens and communities.8

Governor Kemp declared a Public Health State of Emergency for the State of Georgia one day after President Trump declared a national emergency.9 Governor Kemp's declaration marked Georgia's first-ever public health emergency, which granted the Governor additional powers beyond a general state of emergency.10 After hours of debate, Georgia lawmakers ratified Governor Kemp's additional and expanded powers, which included authority to extend the Public Health State of Emergency without their further approval, but the decision was not an easy one.11 One concern, expressed by

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State Representative Bert Reeves (R-34th), was what would happen if too many lawmakers became sick and could not vote on whether Governor Kemp's powers should continue without their approval.12 While Governor Kemp's expanded emergency powers enjoyed bipartisan support within the legislature, interest groups such as the American Civil Liberties Union (ACLU) of Georgia expressed concerns.13 Andrea Young, Executive Director of the ACLU of Georgia, noted the Governor's emergency powers lacked additional oversight and transparency.14

Background

Preemption

Preemption is the legal doctrine that recognizes that a higher level of government can limit or eliminate "the power of a lower level of government to regulate a certain issue."15 Preemption comes in several forms. Express preemption describes when a law explicitly states that it "preempt[s] a lower-level law-making authority."16 Implied preemption does not include explicit preemptive language but occurs if the higher-level law comprehensively regulates the issue or if the lower-level law interferes with the goal of the higher-level law.17 In addition, preemption varies based on how mild or concerning the form of preemption may be.18 Floor preemption, the

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mildest form of preemption, occurs "where the higher level of government passes a law that establishes a minimum set of requirements, and expressly allows lower levels of government to pass or enforce laws that impose more rigorous requirements."19 Ceiling preemption prevents lower levels of governments "from requiring anything more or different."20 Preemption is a tool that, if used effectively, can make higher-level government responses more effective.

Historically, the Georgia Constitutions of 1945 and 1976 contained uniformity clauses, which stated that "[l]aws of a general nature shall have uniform operation through the State, and no special law shall be enacted in any case for which provision has been made by existing general law."21 The Supreme Court of Georgia interpreted that uniformity clause provision as both a preemption rule and a conflict rule.22 Thus, there were two opposing ways to read the uniformity clause. According to the preemption analysis, if the legislature "entered a field by enacting a general law," that field was not open to regulation by special or local laws.23 Under the conflict analysis, special laws were only prohibited if they were in "genuine conflict" with a general law.24 "Based on these differing interpretations, it was unclear whether the uniformity clause preempted any special or local law when the [S]tate had passed a general law on the subject or whether [the clause] merely prohibited conflicts between general and local laws."25

The Georgia Constitution of 1983 resolved this interpretation issue, granting local governments "concurrent jurisdiction with the state to exercise certain police powers in areas of concern to both."26 The current Georgia Constitution uniformity clause states:

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Laws of a general nature shall have uniform operation throughout this state and no local or special law shall be enacted in any case for which provision has been made by an existing general law, except that the General Assembly may by general law authorize local governments by local ordinance or resolution to exercise police powers which do not conflict with general laws.27

Thus, under the Georgia Constitution, local laws are preempted by state laws that regulate the same subject matter. However, if the local law does not conflict with the state law and the state law so authorizes, the local government may act despite the state law. Sometimes a state law "occupies a field" so that a local order is preempted even if the state law "insufficiently achieves essential public health outcomes."28 When a state statute occupies such an area of the law, Georgia courts uniformly strike local ordinances that take more restrictive actions than are permissible per the statute. As explained by Georgia courts, however, laws are not conflicting so long as "the local law does not impair the general law, but rather augments and strengthens it."29

For example, in Hill v. Tschannen, the court addressed whether a local ordinance was preempted by state statute.30 The statute required apartment buildings to have a battery-operated smoke detector in good working order, whereas the local Ordinance only required smoke detectors powered by the building's electrical system.31 The court held that the local Ordinance was preempted by the state statute because the Ordinance conflicted with and provided stricter

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requirements than the state statute, hindering the operation of the state law rather than strengthening it.32

Tybee Island's Emergency Directive & Beach Ordinance

On March 19, 2020, Governor Brian Kemp (R) recommended that local officials take action to keep their communities safe from the spread of COVID-19 and "make decisions based on what their communities' needs were."33 In Tybee Island, a small beach town known for large gatherings and socializing, local leaders took this call very seriously. Without enough "enforcement officers to do anything about most of the activities [the mayor of Tybee Island] was seeing," along with additional factors such as underage drinking that could lead to increased spread of the virus, the mayor and city council decided to close the beach.34 The mayor issued the Tybee Island Emergency Directive (Directive) on March 20, 2020, closing all the beaches on the island to keep citizens safe and healthy.35 One day later, Hilton Head, Saint Simons, and Jekyll Island followed Tybee's lead and closed their beaches as well.36 Mayor Shirley Sessions hoped that closing Tybee's beaches would allow residents to "get back to some sort of normal and welcome people back to the beach once [Tybee] got past the [COVID-19] issues."37

On April 2, 2020, Mayor Sessions issued an Emergency Declaration and Ordinance (Declaration), which took immediate effect to protect the safety and health of Tybee's constituents.38 The Declaration established a local state of emergency in Tybee Island that would continue to exist "until the conditions requiring this

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declaration [were] abated."39 The Declaration limited city council meetings to virtual teleconferences and closed all nonessential businesses and dine-in services; it also listed previous directives for clarity, including the Directive that closed all public beaches for the foreseeable future.40 On April 2, Governor Kemp issued an Executive Order superseding these local Orders, which shocked local leaders.41 While the Governor's Order restricted dining rooms, barbershops, and gyms across the State of Georgia, the Order opened the beaches of Tybee Island to the public.42 Mayor Sessions described her initial reaction to the Order as shocked and disappointed, and stated that she "did not understand why someone did not communicate why the state was taking such a direct and drastic turn . . . ."43

Mayor Sessions explained that learning about Governor Kemp's announcement through a press release "was very disappointing."44 She had no "heads up, [no] phone calls, no letters, no...

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