James Tysse Quoted in USA Today on Legality of Stay-at-Home Orders

Akin Gump Supreme Court and appellate partner James Tysse has been quoted by USA Today in the article “Fact check: Stay-at-home and other state emergency orders are not unlawful.” The article looks at the veracity of claims that the various stay-at-home orders seen across the country during the coronavirus pandemic are illegal.

While many of the orders have been codified through executive orders by governors, the article reports on a Facebook post claiming that they were unlawful and unenforceable. Tysse said the poster’s view “reflects a fundamental misunderstanding about what these states’ stay-at-home orders are.”

Executive orders do not create new laws, Tysse pointed out; rather they unlock emergency powers that had been previously granted or new emergency powers that passed through the legislative process. While the Facebook post that governors and mayors cannot “craft a law and assign a punishment for its non-compliance” is true, Tysse said the stay-at-home orders do not fit this description because they activated established powers.

Each state, the article says, has its own emergency legislation to respond in a situation such as a pandemic. “Critically, those laws will usually require any emergency measures to be temporary and only during a declared emergency,” Tysse said. “And they may also put limitations on the ability of the governor or mayor to do certain things.”

Tysse co-authored an Akin Gump client alert on the topic of emergency powers and constitutional limits, which can be found by clicking here.