Del. Dan Cox is continuing his efforts to have Gov. Larry Hogan’s emergency orders to control the spread of the coronavirus pandemic in the state declared unconstitutional, asking the federal court of appeals to overturn his loss in district court.
Whether his quest is quixotic or principled is probably in the eye and the politics of the beholder. But one argument Cox cited in his pleading just leapt out at us.
In asking the appeals court for an injunction that would immediately end Hogan’s emergency orders while the appeal is heard, Cox’s legal team wrote:
“The State will incur no real harm to any legitimate government interest, because the Appellants’ gatherings, speech, businesses and activities will be conducted with reasonable care to ensure health and safety.”
That is just fantasy, pure and simple.
The governor has a legitimate interest in protecting the health of the citizens of the state, even those who do not want their health to be protected. We have praised him repeatedly for acting swiftly and surely in the crisis.
Yes, his actions have been drastic and in some cases unprecedented. But we are in crisis that is without any precedent in modern history. Closing schools, businesses and even churches was necessary to decrease the spread of the highly contagious and life-threatening virus.
Cox is essentially arguing that everyone would voluntarily adopt and follow the health and safety advice of virus scientists. All one need do is look around the state and the country to see that is not true.
From the mass gathering at the Lake of the Ozarks in Missouri on Memorial Day weekend to New York City where huge crowds milled about in the streets around newly reopened bars and restaurants, we can see that people hate to give up close contact. And they don’t all want to wear a mask either, even at the risk of spreading a deadly disease.
In such dire times, we expect the government to act, and Hogan did.
Cox’s co-plaintiffs include multiple state religious leaders, fellow delegates Neil Parrott (R-Washington) and Warren Miller (R-Carroll and Howard), and businesses such as Adventure Park USA near New Market and Antietam Battlefield campground. They are suing Hogan, Attorney General Brian Frosh and others. The injunction request was filed last week in the U.S. Court of Appeals for the Fourth Circuit. It seeks to temporarily end Hogan’s executive orders until there is a ruling on the appeal.
In both his original lawsuit and in this appeal, Cox has argued that Hogan’s executive orders exceed his authority under the state and federal constitutions. We do not pretend to be experts on constitutional law, but U.S. District Court Judge Catherine Blake in rejecting Cox’s assertions, said it well:
“Public officials cannot responsibly exercise their broad authority to protect the health of the entire community without considering the data, the science, and the advice of experienced public health professionals. Governor Hogan, exercising the powers given to him by the legislature in the face of the COVID-19 crisis, has made reasonable choices informed, if not dictated by, such data, science, and advice.”
Common sense and widely available evidence tells us that the governor had to act as he did precisely because churches, restaurants, theaters and sports teams would not have acted voluntarily “with reasonable care to ensure health and safety,” as Cox now wants to have it.
It took a strong governor to make it happen. Luckily for Maryland, we had one on the job at the right time.