by Emilio Jaksetic
According to The Virginia Star, some Virginia counties are considering drafting resolutions to oppose enforcement of Governor Ralph Northam’s executive orders on COVID-19.
While I believe Northam abused his emergency powers, this is not the solution. If passed, these resolutions are likely to be found to be legally unenforceable by Virginia courts on four grounds.
First, in Virginia, local governments (county, city, town, or regional) have limited power. The local governments derive their existence and powers from laws passed by the General Assembly (VA Constitution, Article VII, Sections 1-3). Furthermore, under the Dillon Rule, local governments have only those only powers that are:
- expressly granted by the General Assembly;
- necessarily or fairly implied by the expressly granted powers; and
- essential to the declared objects and purposes of local government.
According to the Dillon Rule, any reasonable doubt about whether such powers exist “must be resolved against the local governing body.”
(See, e.g., Dumfries-Triangle Rescue Squad, Inc. v. Board of County Supervisors of Prince William County, VA Supreme Court, October 22, 2020.)
Second, the powers of local government are subordinate to the Virginia Constitution and the Code of Virginia. According to Section 1-248 of the Code, “The Constitution and laws of the United States and of the Commonwealth shall be supreme. Any ordinance, resolution, bylaw, rule, regulation, or order of any governing body or any corporation, board, or number of persons shall not be inconsistent with the Constitution and laws of the United States or of the Commonwealth.” Northam’s Executive Orders on COVID-19 invoke authority under the Virginia Constitution and cited provisions of the Virginia Code.
Third, under the Virginia Constitution, the judicial power is vested in the courts (VA Constitution, Article VI, Section 1), and the judicial power cannot be exercised by the executive or legislative branches of the Virginia government (VA Constitution, Article III). Moreover, declaring a law or governmental act to be unconstitutional is an exercise of judicial power committed to the Virginia courts. Local governments may have strong beliefs and opinions about the constitutionality or unconstitutionally of a law or governmental action, but those beliefs and opinions are not legally determinative or dispositive.
Fourth, nothing in the Virginia Constitution or the Virginia Code makes the governor subordinate to, reviewable by, or subject to limitations set by, local governments.
Of course, the Virginia governor is not above the law, and the legality of his actions can be challenged in the courts. See, e.g., Howell v. McAuliffe (VA Supreme Court, July 22, 2016) (Supreme Court decision upholding legal challenge to Governor McAuliffe’s executive order removing political disabilities from approximately 206,000 Virginians convicted of a felony). Also, the governor can be impeached by the House of Delegates and removed from office if convicted by the Senate (VA Constitution, Article IV, Section 17). However, given the current Democratic Party majority in the General Assembly, it is improbable that Northam would be impeached and removed from office based on his executive orders concerning COVID-19.
Any ordinance, rule, resolution or proclamation issued by any local government that seeks to prevent or limit enforcement of Northam’s executive orders concerning COVID-19 is likely to be held unenforceable by a court. At most, such issuances can only have symbolic effect that expresses or signals strong disagreement and dissatisfaction.
Any citizen, business, organization or group in Virginia aggrieved by Northam’s executive orders concerning COVID-19 should not expect to get any meaningful or tangible relief based on any ordinance, rule, resolution or proclamation issued by a local government.
Rather than invest time and energy in getting local governments to pass symbolic, legally unenforceable declarations, anyone convinced that Northam has exceeded or abused his authority in issuing his executive orders on COVID-19 should invest their time and energy in seeking relief though the courts.
Emilio Jaksetic, a retired lawyer, is a Republican in Fairfax County.
