Lawmaker asks AG if there’s middle ground in repealing Ducey’s emergency order




Rep. John Kavanagh, R-Fountain Hills. Photo by Jerod MacDonald-Evoy

A Republican lawmaker wants the attorney general to weigh in on whether the legislature can rescind Gov. Doug Ducey’s emergency declaration for the COVID-19 outbreak without triggering some unintended consequences.

Rep. John Kavanagh, R-Fountain Hills, submitted an opinion request to Attorney General Mark Brnovich on Monday regarding the emergency declaration for COVID-19 that Ducey issued in March 2020. The legislature has the power to repeal a gubernatorial emergency declaration with a majority vote in each chamber, without the governor’s signature. Kavanagh’s seatmate, Sen. Michelle Ugenti-Rita, is hoping to do just that. 

But Kavanagh has some questions he wants answered before that happens. The veteran legislator wants to know whether the legislature can modify the governor’s emergency declaration and the other steps he’s taken under the aegis of that order, and whether the legislature can make Ducey’s use of his emergency powers contingent on other factors, such as the number of coronavirus infections in Arizona or the availability of hospital beds.

Ducey has used the authority of his emergency declaration to issue myriad other executive orders related to the COVID-19 pandemic, such as limiting indoor dining at restaurants and barring evictions for nonpayment of rent, among others. 

Kavanagh said it would be ideal if the legislature could “rescind or lessen certain aspects” of Ducey’s emergency order, lower the intensity of some provisions, and make the legislature more of a partner in the process. He declined to say which provisions he wouldn’t want to repeal, and noted that the governor’s emergency power, and the legislature’s ability to restrict it, would apply to potential future pandemics as well.

“Ideally there would be room for mid-ground. All or nothing is a difficult choice,” Kavanagh said.

Kavanagh also wants Brnovich to determine whether Ducey could simply enact a new emergency declaration, in whole or in part, if the legislature repealed the current one, or issue a new declaration without legislative approval in response to the same emergency if conditions worsened.

In addition, Kavanagh asked whether cities and counties could enact their own emergency declarations, or whether that power would be contingent on the governor taking action first. And if both a county and a city within that county enacted conflicting emergency rules, he asked, which entity is supreme?

“You could have a not-so-gorgeous mosaic of conflicting regulations that don’t treat people or businesses fairly,” he said.

The Ducey administration declined to comment on Kavanagh’s request to the attorney general.

The 2021 legislative session begins on Jan. 11, and one matter that lawmakers could take up quickly is a proposed joint resolution from Ugenti-Rita that would terminate Ducey’s emergency declaration. The resolution requires only a majority vote in each chamber of the legislature, and doesn’t need the governor’s signature to go into effect.

The GOP has a 31-29 majority in the House of Representatives and a 16-14 majority of the Senate, meaning they can’t afford to lose a single Republican on a party-line vote.

Ugenti-Rita, a Scottsdale Republican who has been vocally critical of Ducey for some of the steps he’s taken to curb the spread of COVID-19 — including for shutting down or restricting certain business operations and for acting unilaterally without consulting the legislature — said she doesn’t share Kavanagh’s concerns about repealing the emergency declaration.

“I want to return to normal and I think most Arizonans want to, as well. If there are things that we can address legislatively, I am ready and willing to work with my colleagues to do that,” she said. “But I don’t see what the problem is in returning a balance of power between two co-equal branches of government.”

But for the Kavanagh, the decision on whether to vote for Ugenti-Rita’s resolution may come down to what the attorney general has to say. He indicated that he’s particularly concerned with how local governments might respond if the declaration is repealed.

“If there’s a mid-ground, that’s one thing. If rescinding the governor’s order, which, in terms of restrictions, is fairly mild compared to most states, would unleash local government, some of whom could enact extremely draconian measures, that’s something to think about,” Kavanagh said. “One of the biggest outputs of the legislature are unintended, negative consequences, and we really need to minimize them in an important area like this.”