May 18, 2020
By Timothy Sandefur

This morning, the Goldwater Institute sent a letter to the Pima County Board of Supervisors urging it to repeal its recent proclamation imposing new rules on restaurants and other businesses in the County. Adopted on May 13, the proclamation contradicts Governor Doug Ducey’s May 12 executive order, conflicts with state law, and imposes arbitrary and unenforceable requirements on local businesses.

And furthermore, it’s a reminder of the problems that powerful local governments can pose for the protection of people’s rights.

The Governor’s order, entitled “Stay Healthy, Return Smarter, Return Stronger,” requires businesses to “establish and implement policies” to protect against the risk of transmission of the novel coronavirus. Such steps must be “based on guidance” from state and federal health agencies. And the order prohibits counties from making or issuing “any order, rule or regulation that conflicts with or is in addition to the policy, directives or intent of this Executive Order” (emphasis added).

But the day after that order was issued, the Pima County Board of Supervisors adopted a long list of mandates on businesses, some of which make no logical sense. For example, the county’s proclamation purports to require businesses to conduct “wellness checks” on delivery personnel, even if those personnel don’t work for the businesses in question. And the rules don’t say what they’re supposed to do if they do a “wellness check” on the mailman and he tests positive for COVID-19.

Of course, everyone wants people to be safe. Businesses have every incentive to ensure that they take steps to protect their customers, and they’re in the best position to determine what safety steps are realistic in light of their facilities and the needs of their clients. The Governor’s order was designed to allow businesses the flexibility necessary—while still requiring them to comply with state and federal government guidelines. But the Pima County proclamation disregards this rule and adds its own list of poorly considered rules.

Along with the Goldwater Institute, the Arizona Attorney General has also asked the Board to reconsider the requirements, given that they contradict not only the Governor’s order, but also Arizona state law, which prohibits local governments from adopting rules that conflict with orders from state officials.

That rule is important because while local governments play a vital role in regulation—given their knowledge of local needs and circumstances—they also pose a unique threat. City and county governments often fall prey to what the Founding Fathers called “faction” (meaning the exploitation of government power by effective lobbyists to burden their opponents), and local majorities frequently gang up against individuals or unpopular minorities. State power to limit and override local officials is a crucial element of our checks-and-balances system, designed to protect individual rights against government power at whatever level it’s exercised.

The Board is expected to meet this week to decide how to proceed.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.

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