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By Thomas A. Kendrick

As a lawyer who defends healthcare providers that continued to care for patients during the COVID-19 pandemic, I take a different view from my opposing counsel who published an article in the September edition of The Alabama Lawyer.[i] See David Wirtes, Jr., Joseph D. Steadman, Aaron N. Maples, & Joseph D. Wirtes, Are There Constitutional Issues with Alabama’s Gubernatorial and Legislative Responses to the COVID-19 Pandemic?, 83 Ala. Law. 311 (Sept. 2022) (the “September Article”).

Executive Summary

While the September Article contends that Governor Ivey’s May 8, 2020, emergency order (an executive order that provides certain protections to healthcare providers and businesses from COVID-19 lawsuits) violates the separation-of-powers test under Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952), it fails to state the test. Under Youngstown and the cases applying it, an executive order does not impinge on the legislative power when the legislature authorizes the executive to issue the order. After Youngstown, the Alabama Legislature passed the Alabama Emergency Management Act [AEMA] that expressly authorizes the governor to issue orders to address emergency conditions, including a public health emergency and an epidemic – exactly what Governor Ivey’s May 8, 2020, order did.

The September Article asserts that Governor Ivey’s May 8, 2020, order violated § 21 of the Alabama Constitution by suspending existing law. But the article fails to recognize that it was not the governor who suspended laws, but the legislature that passed the AEMA that provides that laws inconsistent with an emergency order “shall be suspended” during the temporary period of the emergency. This was consistent with the case law and the constitution’s provision “[t]hat no power of suspending laws shall be exercised except by the legislature.” Ala. Const. § 21 (1901) (emphasis added).

And the September Article argues that AEMA violates the non-delegation doctrine by delegating to the governor powers that are too broad. This ignores that the AEMA limits the power delegated to the governor to issue emergency executive orders to the specific time when a specific emergency is declared and to measures that address only that emergency. Further, Governor Ivey’s May 8, 2020, order provided limited protections only for a public health emergency (i.e., the COVID-19 pandemic), only during the COVID-19 state of emergency, and only from COVID-19 lawsuits that the governor found threatened the ability of healthcare providers and businesses to remain open and to re-open to serve patients and consumers.

In fact, in 2021, the legislature passed the Alabama COVID Immunity Act that specifically adopted into statutory law the specific protections granted by Governor Ivey’s order. In addition to ignoring the effect of this ratification, the September Article ignores that the overwhelming number of appellate decisions addressing the non-delegation doctrine have rejected its application, including those decisions considering COVID-19 emergency orders.

* * *

Every time there is a hurricane, tornado, or other natural disaster, the president and Alabama’s governor issue executive orders to address the emergency. Emergency orders issued under the AEMA can waive the licensing requirements for out-of-state nurse practitioners to come to Alabama to help in an emergency,[ii] waive hours-of-service limitations for truck drivers delivering emergency supplies to disaster areas,[iii] and get emergency supplies delivered to families who need it most.[iv]

In Alabama, the legal authority for these orders is the Alabama Emergency Management Act of 1955 (“AEMA”), Ala. Code §§ 31-9-1 to -25. Through the AEMA, the legislature has authorized the governor to declare a state of emergency, § 31-9-8(a), and to issue emergency orders “necessary” to address the emergency, § 31-9-6(1) and -8. Under the AEMA, the governor’s emergency orders have the “force and effect of law” and “suspend” inconsistent laws, § 31-9-13, but these orders only last as long as the emergency does. The AEMA makes particularly good sense given that we have a part-time legislature, and emergencies don’t necessarily follow the legislative calendar.

Following the Trump administration’s declaration of a state of emergency for the nation based on the COVID-19 pandemic,[v] Governor Ivey declared a state of emergency for Alabama based on COVID-19 on March 13, 2020. In that order, the governor approved the use of “alternative standards of care” by healthcare providers. For example, under existing Alabama law, in a non-emergency situation, a hospital may have enough nurses to check on patients once every hour. By contrast, in an emergency that triples the number of patients, the hospital could not live up to that non-emergency standard of care. Governor Ivey’s May 8, 2020, order allowed the standard of care to meet what the hospital and nurses could actually do during the emergency, so they could continue treating patients without the threat of being sued.

Other orders that Governor Ivey issued during the COVID-19 emergency include:

• Modifying out-of-state licensing requirements to allow healthcare professionals from other states to work in Alabama.[vi]
• Allowing governmental bodies to meet by video conference so long as certain open meeting requirements are satisfied (e.g., Zoom).[vii]
• Postponing deadline for state tax filing.[viii]
• Allowing witnesses to be sworn and documents to be notarized using video (e.g., nursing home patients executing a will).[ix]
• Postponing the primary runoff date to prevent voters from standing in line next to each other at the beginning of the COVID-19 crisis.[x]

In March 2020, Secretary of State John Merrill requested an opinion from Attorney General Steve Marshall on the validity of an emergency order postponing the March 31, 2020, runoff election to July 14, 2020. Attorney General Marshall concluded:

“The Governor, therefore, has the authority under the AEMA to declare a state of emergency as a result of the emergence of the COVID-19 virus, and she has the authority to postpone a primary runoff election to protect the public health and safety during the proclaimed emergency. Should the Governor exercise her authority to postpone the primary runoff election, any existing law setting a contrary date for the primary runoff election would be suspended by the AEMA.”[xi]

On May 8, 2020, Governor Ivey issued an emergency order under the AEMA that helped healthcare providers to continue to operate and businesses to re-open during the COVID-19 emergency. The order recognized that:

• “[T]he various practices put into place to slow the spread of COVID-19 have been helpful from a public health perspective, but they have also required the closure of numerous businesses and resulted in damage to the economy of the State and the Nation and caused economic hardship to working people and their families”;
• “[S]tudies have shown that mortality rates increase significantly during periods of high unemployment”;
• “[O]n April 28, 2020, the Alabama State Health Officer, with [the governor’s] support, issued an order to begin the process of allowing businesses and the economy in Alabama to reopen consistent with preserving the public health”;
• “[A]s a result of this continuing uncertainty, businesses have been reluctant to reopen–or, where partially open, to fully reopen–for fear of lawsuits and the risk of the associated expense and liability”;
• “[The governor’s] office has worked with representatives of business and industry to obtain information on concerns and challenges associated with re-starting the economy of this State.”[xii]

The May 8, 2020, order also found:

• “That COVID-19 cases have put, and will continue to put, a significant strain on the health care facilities, health care providers, and health care resources of this State and that COVID-19 cases have undermined, and will continue to undermine, the ability to deliver patient care or obtain certain equipment or materials in the traditional, normal, or customary manner”; and
• “That COVID-19 has affected, and will continue to affect, our health care system in unique and potentially devastating ways, and our health care facilities, health care professionals, and their supporting workers need protection to respond to this pandemic and to do what they can do to continue to provide treatment and services for the people of Alabama.”[xiii]

The May 8, 2020, order recognized that healthcare providers and businesses were subject to Alabama Department of Public Health orders setting out COVID-19 protocols to protect patients, employees, and customers. The order provided healthcare providers and businesses with protections specifically designed to help them remain open and to reopen during the COVID-19 emergency so they could provide healthcare services and other needed goods and services. The three basic protections are:

• Protection for healthcare providers and businesses from COVID-19 negligence claims, but no protection for wantonness or recklessness claims;
• Requiring COVID-19 claims against a healthcare provider or business to be proven by “clear and convincing” evidence, instead of the “more likely than not” standard of proof; and
• Allowing recovery of only economic damages. This means that punitive and non-economic damages are not available. For wrongful death claims, however, punitive damages are available.[xiv]

Further, in May 2020, Senator Arthur Orr offered Senate Bill 330 to provide the same protections that Governor Ivey’s order did. Because of COVID-19, however, the senate adjourned without voting on that bill and many others. As soon as the legislature reconvened in 2021, Senator Orr and Representative David Faulkner introduced a bill providing the same protections as Governor Ivey’s order and doing so retroactively. The bill passed the House by a vote of 87-4 and is now the Alabama COVID Immunity Act (the “ACIA”), Ala. Act 2021-4. The legislature authorized Governor Ivey’s emergency order on the front end with the AEMA of 1955 and approved it on the backend with the ACIA in 2021.

* * *

But did the governor, the attorney general, and the legislature properly consider the Alabama Constitution with respect to the AEMA, the emergency orders, and the ACIA? Yes, it turns out they did.

I.             Governor Ivey’s Emergency Order Passes the Youngstown Separation-of-Powers Test Because the Order Was Authorized by the Legislature

A.           Governor Ivey’s May 8, 2020, Emergency Order Complied with the Youngstown Separation-of-Powers Test Because It Was Authorized by the Alabama Emergency Management Act

The September Article argues that Governor Ivey’s emergency order violates the separation of powers principle, but the U.S. Supreme Court’s seminal case says it does not. The case that established the constitutional separation-of-powers test for executive orders is Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952). President Truman issued an executive order to seize steel mills to prevent a strike that would have negatively affected the production of ammunition and other military supplies during the Korean Conflict. The Supreme Court concluded that the executive order was not authorized by the Taft-Hartley Act for which Congress had specifically considered and rejected an amendment that would have allowed presidential seizures. Thus, the executive order impinged on legislative power and violated the constitution.

The September Article states: “In numerous respects, Governor Ivey’s actions are similar to those taken by President Truman in Youngstown.” Sept. Art. at 322. Right case; wrong test. The Youngstown separation-of-powers three-part test for executive orders is as follows:

 

Executive Order	Youngstown Test for Validity of Executive Orders
Valid	“When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum . . . .”
Questionable	“When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.”
Invalid	“When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb . . . .” Youngstown, 343 U.S. at 635-38 (Jackson, J., concurring).

 

The three-part test set forth by Justice Robert Jackson has been recognized as the standard by federal and Alabama appellate courts.[xv]

Unlike President Truman’s 1952 order in Youngstown that was not authorized by the Taft-Hartley Act (Congress had rejected giving the president the seizure power), Governor Ivey’s 2020 order was expressly authorized by the AEMA. Indeed, the legislature even ratified the specifics of Governor Ivey’s order after the fact.

Three years after the 1952 Youngstown decision, the Alabama Legislature took a cue from that decision and enacted the AEMA of 1955 to authorize Alabama governors to declare states of emergency and to issue executive orders to address those emergencies. Governor Ivey acted within the AEMA when she declared a state of emergency for the COVID-19 pandemic and issued temporary orders to address various aspects of that specific emergency.

B.           The Alabama Cases Do Not Hold Otherwise

The September Article points out that in Hawkins v. James, 411 So. 2d 115 (Ala. 1982), the Alabama Supreme Court held unconstitutional an executive memorandum that directed state department heads not to recommend a waiver for employees who wanted to work past age 70 without approval of the state finance director. Sept Art. 320-21. But in Hawkins, there was no emergency. And the statute at issue in Hawkins, which allowed a waiver of the 70-year age limitation, did not authorize the governor to issue an executive order to affect the waiver process.

Unlike the statute in Hawkins, the AEMA does authorize the governor to issue orders to address emergencies: “The Governor is authorized and empowered: (1) To make, amend, and rescind the necessary orders, rules and regulations to carry out the provision of this article . . .”[xvi]  “[T]he Governor shall have and may exercise the following additional emergency powers: . . . (5) To perform and exercise such other functions, powers and duties as are necessary to promote and secure the safety and protection of the civilian population.”[xvii]

The September Article further relies on Jetton v. Sanders, 275 So. 2d 349 (Ala. Civ. App. 1973), in which the Alabama Court of Civil Appeals struck down a portion of an executive order that set the maximum amount for which a criminal defense attorney could be reimbursed at $75 per case. The executive order violated the separation-of-powers principle because the $75 cap conflicted with a statute that set the cap at $500 per case. Again, there was no emergency. Unlike the statute in Jetton, the AEMA expressly authorizes the governor to issue temporary emergency orders, even orders that conflict with previously existing law.[xviii] The AEMA provides that laws that conflict with the emergency order “shall be suspended” while the emergency lasts. Ala. Code § 31-9-13.

II.            Governor Ivey’s Order Does Not Violate § 21 of the Alabama Constitution Because the Governor Did Not Suspend the Laws, the Legislature Did in the AEMA

Suspended means that a law inconsistent with an emergency order is displaced and has no effect only for the temporary period of the emergency and comes back into force automatically when the emergency ends. The September Article argues that the governor’s suspension of law violates § 21 of the Alabama Constitution that authorizes only the legislature to suspend laws. Sept. Art. 319-20. A close reading of the authorities at issue and the AEMA, however, shows the AEMA does not violate § 21 because the governor did not suspend the laws, the legislature did.

The September Article relies on Opinion of the Justices No. 238, 345 So. 2d 1354 (Ala. 1977), in which the justices opined that a proposed bill that would have authorized the governor himself to suspend utility rates, which had the force of law, would violate § 21. The proposed bill provided:

The Governor of Alabama shall, at any time when in his considered opinion extraordinary action in the matter of utility rates is called for, by Executive Order freeze a utility rate or rates, established by the Alabama Public Service Commission, at the then existing level or may roll said rate or rates back . . . .

345 So. 2d at 1355 (emphases added).

Unlike the statute in Opinion of the Justices No. 238, the AEMA does not say the governor can suspend a law. Instead, the legislature itself in the AEMA suspended laws that are inconsistent with the governor’s emergency order:

“All existing laws, ordinances, rules, and regulations or parts thereof inconsistent with the provisions of this article or of any order, rule, or regulation issued under the authority of this article, shall be suspended during the period of time and to the extent that such inconsistency exists.”

Ala. Code § 31-9-13 (emphases added).

That suspension by the legislature is consistent with § 21 of the constitution: “That no power of suspending laws shall be exercised except by the legislature.” Ala. Const. § 21 (1901) (emphasis added.) Because the September Article’s argument is wrong on the face of § 21, there is no need to wipe from the books almost 70 years’ worth of emergency orders that temporarily suspend certain laws during an emergency (e.g., allowing out-of-state healthcare providers to come to practice in Alabama, authorizing video notarization of documents, allowing truck drivers to work overtime to deliver emergency supplies to hurricane victims).

In Hand v. Stapleton, 33 So. 689 (Ala. 1903), the Alabama Supreme Court concluded that the predecessor of § 21 was not violated by a statute that suspended the movement of a courthouse from Daphne to Bay Minette. The suspension lasted until the local board of commissioners determined that the move would not require a tax increase.

“The Legislature determined for itself that the act should not take effect until it was ascertained by the board of commissioners that the amount to be paid by the county for building the courthouse and jail would not require an increase in the tax rate of the county–a limitation expressly declared in the act itself. . . . Whatever suspension there was of the act until the commissioners could determine the question of fact submitted to them, it was exercised by the Legislature, and not by the commissioners.”

Id. at 692 (emphases added).

Similarly, the legislature determined for itself in the AEMA that existing laws could be suspended, § 31-9-13, if the governor finds that a “public health emergency” exists, § 31-9-8(a), and that the emergency order is “necessary to promote and secure the safety and protection of the civilian population,” § 31-9-8(a)(5). Following the lead of the Trump Administration, Governor Ivey found that there was a public health emergency for COVID-19 in her March 13, 2020, proclamation. In her May 8, 2020, emergency order, Governor Ivey found that protecting healthcare providers and businesses from COVID-19 lawsuits was “necessary” to protect the civilian population. Whatever suspension there was, it was exercised by the legislature, and not by the governor. That followed § 21 of the Alabama Constitution to a T.

III.          The AEMA Does Not Violate the Non-Delegation Doctrine

A.           Governor Ivey’s AEMA Orders Are Limited to a Specific Type of Emergency, Have a Specific Fit With That Emergency, and Lasted for a Specific, Limited Time

The September Article contends that the AEMA violated the non-delegation doctrine by delegating too much power to the governor. Sept. Art. 323-25. That argument fails when the AEMA is read with respect to the specific emergency at issue, the specific order at issue, and the legislature’s enactment of the ACIA that effectively ratified the lawsuit protections granted by Governor Ivey’s order.

The non-delegation doctrine provides that the legislature cannot delegate its power to make law to a non-legislative body or person (e.g., an administrative agency) unless it provides an “intelligible principle” that cabins what kind of rules that body can make. See Touby v. United States, 500 U.S. 160, 165 (1991) (rejecting non-delegation doctrine challenge). Three factors that aid in assessing whether a delegation is too broad are the scope of the power, the standards under which the power is limited and the fit of the order with the specific emergency, and the duration of the power.

1.            The Scope of the Power Delegated by the AEMA Is Limited to a Specific Type of Emergency in This Case – COVID-19

The AEMA defines a state of emergency as “fire, flood, storm, epidemic, technological failure or accident, riot, drought, sudden and severe energy shortage, plant or animal infestation or disease, earthquake, explosion, terrorism, or man-made disaster, or other conditions.” Ala. Code §§ 31-9-3(4) (emphasis added). Further, the AEMA defines a “public health emergency” as the “appearance of a novel or previously controlled or eradicated infectious agent” that “[p]oses a high probability of . . . [a] large number of deaths in the affected population.” Ala. Code § 31-9-3(5)a.2 & b.1 (emphases added). Because the COVID-19 pandemic is a bigger version of an epidemic, Governor Ivey acted under a specific grant of emergency powers by the legislature to declare a public health emergency.

The courts have long recognized the validity of legislative delegations of power to deal with public health emergencies. See, e.g., Jacobson v. Massachusetts, 197 U.S. 11, 25, 27, (1905) (holding that the Massachusetts legislature was permitted to entrust to local boards of health decisions regarding health measures “necessary for the public health or the public safety,” during a smallpox epidemic) (emphases added). And in Parke v. Bradley, 86 So. 28, 29 (Ala. 1920), the Alabama Supreme Court rejected a non-delegation challenge to the statute giving the Alabama State Board of Public Health (which had members appointed by an organization of healthcare providers) the power to order quarantines to fight infectious diseases:

“The prevention of disease and the conservation of health, by all of the means known to modern science, is universally recognized as one of the most important and imperious duties of government, and in the construction of statutes enacted for such a purpose, under the police powers of the state, courts are agreed that great latitude should be allowed to the Legislature in determining the character of such laws, and how, when, and by whom, in their practical administration, they should be applied.”

(Emphases added.)

In Parke, 86 So. at 32, the Alabama Supreme Court reasoned that the public board of health statute had been “unchallenged for nearly 50 years, and acquiesced in by the people and by their representatives in convention assembled,” and thus “must, in the absence of any expressed inhibition, and of any clearly defined implication to the contrary, be given very weighty consideration by this court . . . . .” (Emphases added.) Likewise, the AEMA, unchallenged for nearly 70 years and acquiesced in by the legislature, which has made minor amendments but no major changes to the AEMA, must be given “very weighty consideration.” Id.

2.            The AEMA’s Standard – That the Governor’s Order Must Be “Necessary” to Address the Specific Emergency Declared – Passes Muster Under the Non-Delegation Doctrine

Section 31-9-8(a)(5) of the AEMA authorizes the governor “[t]o perform and exercise such other functions, powers and duties as are necessary to promote and secure the safety and protection of the civilian population.” (Emphases added.) “[S]ecure the safety and protection” from what? The specifically declared emergency. See Ala. Code § 31-9-8(a).

So, a governor could not raise taxes, grant himself a law degree, or use public funds to buy himself a yacht during an epidemic emergency because those actions would have nothing to do with addressing the effects of that emergency. Necessary means an emergency order must fit the specifically declared emergency. In Parke, 86 So. at 30-31, the Alabama Supreme Court used the word necessary to show what delegations were proper:

“[I]t is thoroughly well settled by the decisions of this, as well as other states, that the implied limitation against the delegation of the lawmaking power was never intended to prevent Legislatures from authorizing their own appointed agencies to make such minor rules and regulations as are necessary or appropriate for the administration and enforcement of the general laws of the state.”

(Emphasis added.)

In Jacobson, 197 U.S. at 25, 27, the U.S. Supreme Court recounted approvingly that the Massachusetts Legislature was permitted to entrust to local boards of health decisions regarding health measures “necessary for the public health or the public safety,” during a smallpox epidemic. (Emphases added.) Indeed, the standard provided by the statute at issue in Parke was a proper standard no more specific than necessary in the abstract.[xix]

But the abstract must be given context by the actual. As applied to Governor Ivey’s order, the “necessary” standard was quite narrow. Governor Ivey’s May 8, 2020, order applied only during the COVID-19 emergency to only COVID-19 claims against healthcare providers and businesses, and operated for the purpose of ameliorating the health and economic effects of the COVID-19 emergency. And only for negligence claims (not wantonness and recklessness) and limits, but does not preclude damages awards. That fits like a glove.

3.            The Duration of the Governor’s Emergency Powers Is Limited to the Duration of the Emergency

In Alabama, the governor or the legislature may declare a state of emergency that lasts 60 days. Ala. Code § 31-9-8(a). After that, the governor or the legislature can extend it. But to declare or extend the state of emergency, there must be a real emergency. The governor issued a series of orders that extended the state of emergency for COVID-19 until the emergency was terminated on October 31, 2021.

The AEMA’s delegation of power to the governor to determine when emergency conditions no longer exist makes sense. In Alabama, the legislature is a body of part-time legislators while the governor’s duties are full-time. In Beshear v. Acree, 615 S.W.3d 780, 812-13 (Ky. 2020), the Kentucky Supreme Court rejected a non-delegation challenge to COVID-19 emergency orders issued under that state’s emergency statute, stating: “[O]ur legislature is not continuously in session, ready to accept the handoff of responsibility for providing the government’s response to an emergency such as the current global pandemic.” Id. at 812.

And the power of Alabama’s governor to extend the duration of an emergency is limited by the existence of an emergency being subject to judicial challenge, the ability of the legislature with a veto-proof majority to amend the AEMA and terminate the emergency, and the ballot box where the voters can terminate a governor’s holding of the office. See Beshear, 615 S.W.3d at 813 (“[J]udicial challenges to the existence of an emergency or to the content of a particular order or regulation; legislative amendment or revocation of the emergency powers granted the Governor; and finally the ‘ultimate check’ of citizens holding the Governor accountable at the ballot box” all check the duration of an emergency.”).

In short, the AEMA provides an intelligible principle – emergency orders must be tailored to the specific, declared emergency and last only as long as the emergency does. There is no unconstitutional delegation of unlimited power.

B.           The Outlier Michigan Case Does Not Create an Unconstitutional Delegation in Alabama

The September Article cites a Michigan case that held that Michigan Governor Gretchen Whitmer’s COVID-19 emergency orders were invalid because the Michigan emergency statute violated the non-delegation doctrine. Sept. Art. 323-25 (citing In re Certified Questions from the United States District Court, 958 N.W. 2d 1 (Mich. 2020)). The September Article, however, does not mention all the other cases that reject non-delegation claims or the differences between the Michigan case and the Alabama statutory law and emergency order.

1.            The Overwhelming Majority of Appellate Decisions Weigh Against Non-Delegation

In over 230 years, the U.S. Supreme Court has accepted non-delegation arguments twice, both times in 1935 before the large number of agencies that now exist were created. See Whitman v. Am. Trucking Associations, 531 U.S. 457, 488 (2001) (Stevens, J., concurring); Clinton v. City of New York, 524 U.S. 417, 485–86 (1998) (Breyer, J. dissenting). The U.S. Supreme Court’s non-delegation “jurisprudence has been driven by a practical understanding that in our increasingly complex society … Congress simply cannot do its job absent an ability to delegate power ….” Mistretta v. United States, 488 U.S. 361, 372 (1989).

Except for Michigan, the appellate decisions that this writer has found in jurisdictions that have squarely addressed non-delegation challenges to orders issued in response to the COVID-19 emergency have rejected those claims. In fact, four federal appellate cases and seven state appellate cases squarely rejected non-delegation challenges to emergency statutes and orders during COVID-19. See Kentucky v. Biden, 23 F.4^th 585, 608 n.14 (6^th Cir. 2022); In re MCP NO. 165, 21 F.4^th 357, 386 (6^th Cir. 2021), rev’d on other grounds, Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., Occupational Safety & Health Admin., 142 S. Ct. 661 (2022); Slidewaters LLC v. Washington State Dep’t of Lab. & Indus., 4 F.4^th 747, 756 (9^th Cir. 2021) (applying Washington state law); Alabama Ass’n of Realtors v. United States Dep’t of Health & Hum. Servs., No. 21-5093, 2021 WL 2221646, at *3 (D.C. Cir. June 2, 2021); Becker v. Dane Cnty., 977 N.W.2d 390, 403 (Wis. 2022); Newsom v. Superior Ct., 63 Cal. App. 5^th 1099, 1118, 278 Cal. Rptr. 3d 397, 410 (2021); Kravitz v. Murphy, 468 N.J. Super. 592, 624, 260 A.3d 880, 899 (App. Div. 2021); Grisham v. Romero, 483 P.3d 545, 557–58 (N.M. 2021); Casey v. Lamont, 258 A.3d 647, 672 (Conn. 2021); Wolf v. Scarnati, 233 A.3d 679, 707 (Pa. 2020) (applying different law, but rejecting non-delegation claim), superseded by constitutional amendment, Corman v. Acting Sec’y of Pennsylvania Dep’t of Health, 266 A.3d 452, 457 (Pa. 2021); Beshear v. Acree, 615 S.W.3d 780, 812–13 (Ky. 2020).

So, the Michigan case is an outlier. And there are reasons for that.

2.            The Michigan Statute and Experience Were Different from Alabama’s Statute and Experience

The Michigan emergency statute provided only a general catch-all category for emergencies to be declared (i.e., “great public crisis, disaster”). See In re Certified Questions, 958 N.W.2d at 12. By contrast, the AEMA specifically authorizes the governor to declare an emergency when there is an “epidemic” (i.e., a smaller version of a pandemic) or other “public health emergency” that includes the “appearance of a novel or previously controlled or eradicated infectious agent” that “[p]oses a high probability of . . . [a] large number of deaths.” Ala. Code § 31-9-3(5) & (4). Unlike Governor Whitmer, Governor Ivey acted under a very specific grant of power from the Alabama Legislature.

Further, in Michigan, there was a pitched political fight between Democratic Governor Whitmer and the majority Republican Michigan Legislature over, for example, the duration and scope of Governor Whitmer’s executive orders.[xx] In this context, the Michigan court held that the ability of the governor to extend a state of emergency was a factor weighing against delegation.

By contrast, in Alabama there was no fight between the legislature and Governor Ivey. These bodies worked together to protect Alabamians without shutting down this state’s economy. And it worked. In January 2021, Alabama ranked sixth in the nation for how much its unemployment rate has bounced back since 2020.[xxi] In March 2021, Alabama ranked fifth among states in back-to-normal economic ratings,[xxii] and Alabama ranked eighth in the nation in economic momentum compared to Michigan’s 35th.[xxiii]

3.            The Alabama Legislature Enacted the Exact Same Protections as Governor Ivey Provided in Her Order, Making the Delegation in This Case Narrow

The Alabama Legislature’s agreement with Governor Ivey as to the need for COVID-19 lawsuit protections is demonstrated by the legislature’s enactment of the ACIA. The ACIA provided the exact same COVID-19 lawsuit protections as Governor Ivey provided in her May 8, 2020, order. In fact, the ACIA provides that it should be interpreted in pari materia with Governor Ivey’s order. See Act 2021-4, § 7. This confirms that Governor Ivey was acting with the authorization of the legislature just as Youngstown said she should.

Through the ACIA, the legislature effectively ratified the governor’s order, including its specific COVID-19 lawsuit protections and the specific duration of those protections. See Swayne & Hoyt, Ltd. v. United States, 300 U.S. 297, 301–02 (1937) (“[i]t is well settled that Congress may, by enactment not otherwise inappropriate, ratify … acts which it might have authorized … and give the force of law to official action unauthorized when taken”) (citation omitted; internal quotation marks omitted); Fay v. Merrill, 256 A.3d 622, 640–41 (Conn. 2021) (“A separation of powers challenge to executive action is rendered moot by legislative ratification of the challenged executive action.”); Fletcher v. Commonwealth

[i] The authors of the September Article and this article serve as opposing counsel in a case where these issues came up.

[ii] Ala. Gov. Emerg. Procl. I (April. 2, 2020).

[iii] Ala. Gov. Emerg. Procl. III. (Hurricane Ida) (Aug. 28, 2021).

[iv] Id. at IV.

[v] Presidential Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (March 13, 2020).

[vi] Ala. Gov. Emerg. Procl. (April 2, 2020).

[vii] Id.

[viii] Ala. Gov. Emerg. Procl. (March 23, 2020).

[ix] Ala. Gov. Emerg. Procl. (March 26, 2020).

[x] Ala. Gov. Emerg. Procl. (March 18, 2020).

[xi] Ala. Atty. Gen. Op. 2020-020 (March 17, 2020).

[xii] Ala. Gov. Emerg. Procl. Recitals (May 8, 2020); see Ala. Code § 31-9-6(3) (authorizing the governor “to make surveys of the industries, resources and facilities within the state as are necessary to carry out the purposes of this article”).

[xiii] Ala. Gov. Emerg. Procl. I.A. 2 & 3, Findings (May 8, 2020).

[xiv] Punitive damages available for wrongful death claims. The damages limitations do not apply to a “serious physical injury” (i.e., “death or an injury that requires either in-patient hospitalization of at least 48 hours, permanent impairment of a bodily function, or permanent damage to a body structure). Ala. Gov. Emerg. Procl. I.C. 1 & 2, I. B.10. (May 8, 2020).

[xv] See Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 10, (2015) (“In considering claims of Presidential power this Court refers to Justice Jackson’s familiar tripartite framework from Youngstown . . . .”); Ex parte Jenkins, 723 So. 2d 649, 654–55 (Ala. 1998) (citing Youngstown for the proposition that the executive may not usurp the legislative power).

[xvi] Ala. Code § 31-9-6(1) (emphases added).

[xvii] Ala. Code § 31-9-8(a)(5) (emphasis added).

[xviii] Ala. Code §§ 31-9-6(1) & -8(a)(5).

[xix] See Ala. Code § 22-2-2 (delegating to the State Board of Public Health the power “[t]o adopt and promulgate rules and regulations providing proper methods and details for administering the health and quarantine laws of the state”) (emphasis added).

[xx] See Jonathan Oosting, et al., Michigan Supreme Court rules Whitmer lacks COVID-19 emergency powers, Bridge (Oct. 2, 2020), available at https://www.bridgemi.com/michigan-government/michigan-supreme-court-rules-whitmer-lacks-covid-19-emergency-powers (last viewed Oct. 14, 2022).

[xxi] See Micah Danney, Study ranks Alabama in top 10 for unemployment recovery, Alabama Political Reporter (Jan. 27, 2021).

[xxii] See William Thornton, Alabama recovering from COVID faster than other states, economy shows, Al.com (March 11, 2021).

[xxiii] See State Policy Reports, Index of Economic Momentum (March 2021), available at https://governor.alabama.gov/assets/2021/04/FFIS-Index-of-State-Economic-Momentum.pdf (last viewed on Oct. 20, 2022).

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