On Tuesday, Republican Georgia Governor Brian Kemp issued an executive order that was really against Atlanta Mayor Keisha Lance Bottoms and her order for that City’s residents to wear masks in public – and that makes this blogger’s head scratch. Did he, or his staff, bother to read the laws of his own great State of Georgia? They should get cracking, because it’s very obvious that Kemp forgot Atlanta, and cities in Georgia, have home rule power – as mandated by the State of Georgia. But, first, let’s look at what Republican Georgia Governor Brian Kemp did.
Republican Georgia Governor Brian Kemp’s Executive Order Against Mandatory Mask-Wearing
Governor Brian Kemp’s executive order isn’t really targeted as Atlanta Mayor Keisha Lance Bottoms by name. Indeed, it’s an attempt to, essentially place all Georgia residents and businesses, in all municipalities, under one legal whip with respect to actions to control the spread of the Coronavirus.
In all, Executive Order 07.15.20.01 “Providing additional guidance for Empowering a Healthy Georgia in response to COVID-19,” which one can read here, is 41 pages, and has specific requirements for what “shelter-in-place” is, for example.
And in reading it, the Executive Order 07.15.20.01 has a number of passages which would seem to call for mandatory mask wearing. For instance, it calls for all residents, using the word “shall”, to do social distancing. There is no exception. In other words, Executive Order 07.15.20.01 would seem to be clearly targeted at curbing the rampant spread of COVID-19. But, then there is this weird provision on page 40, which reads:
“That pursuant to Executive Order 04.02.20.01 and Code Section 38-3-51, enforcement of any county or municipal ordinance or order that is more or less restrictive than this order is hereby suspended.”
Now, Executive Order 04.02.20.01 is one from Governor Kemp, and that requires visitors and residents of The State of Georgia to shelter in place, and Code Section 38-3-51 refers to “Emergency powers of Governor,” as written. But, in writing “enforcement of any county or municipal ordinance or order that is more or less restrictive”, one would have to ask why Kemp would try to stop any “municipal ordinance or order” that was more restrictive than his own? There’s no language to explain or define that in Kemp’s Executive Order 07.15.20.01. One has to assume, as everyone has pointed to, that Kemp is specifically targeting the actions of Atlanta Mayor Lance Bottoms.
On Friday July 9th, Atlanta Mayor Keisha Lance Bottoms, herself battling COVID-19, announced the city would be reverting to phase one of COVID-19 restrictions which call for residents to stay home except for essential services and wear masks in public. She had good reason to do so: The Georgia Department of Public Health reported 4,484 new cases of COVID-19 on that same day, a daily record for the Georgia, and one that raised the total number of COVID-19 cases since March 2020 to 111,211. Almost 10 percent of COVID-19 tests, or 9.7 percent, showed positive results for COVID-19. Moreover, Atlanta area counties DeKalb, Fulton, Cobb and Gwinnett counties make up a majority of the cases.
Was Governor Kemp Trying To Make President Trump Happy By Going Against Mayor Lance Bottoms?
Kemp, who looked like he was on the way toward forming a good relationship with Lance Bottoms on a par with the one Mayor Kaseem Reed had with Governor Nathan Deal, decided to fire back at her action, and in public. Kemp said in a statement “As clearly stated in the governor’s executive order, no local action can be more or less restrictive, and that rule applies statewide. Once again, if the mayor actually wants to flatten the curve in Atlanta, she should start enforcing state restrictions, which she has failed to do. We ask citizens and businesses alike to comply with the terms of the governor’s order, which was crafted in conjunction with state public health officials. These common-sense measures will help protect the lives and livelihoods of all Georgians.”
For reasons best known to Governor Brian Kemp, he seems to be trying to gain favor with President Donald Trump. Consider that the latest executive order action was done during the period where Trump visited Atlanta for a speech on Wednesday, July 15th. And in total, Kemp has been part of a very small group of governors, all republican, who have acted in lock-step with Trump’s overall idea that the Coronavirus doesn’t require a lot of restrictive laws and will “pass us by” as he said early on. But one would think Kemp would adjust his approach in the face of the obvious: that conditions are worsening. Moreover, one would think Kemp would applaud any local elected official who moved to have stronger laws to protect against the COVID-19 spread – especially one who had it, as was the case with Mayor Lance Bottoms.
Instead of that, what we get is a strange executive order that obviously was done with not a small dose of emotion and ego. So, we get a part of it that clearly violates Georgia’s own laws providing “home rule.”
Home rule is defined as “the government of a colony, dependent country, or region by its own citizens.” In the Georgia case, it’s own laws provide for home rule. In the Georgia Encyclopedia, it is written that:
The Georgia Constitution specifically provides for “home rule” for counties and municipalities in Georgia. While county home rule is constitutionally prescribed, cities may be granted the same right by the state legislature. In both cases the county or city is authorized to adopt “clearly reasonable ordinances, resolutions, or regulations . . . for which no provision has been made by general law and which is not inconsistent with” the Constitution of Georgia. They are prohibited, however, from acting in nine areas: elective offices and salaries, elections and appointments, criminal law, any form of taxation not authorized by the constitution or state law, activities otherwise regulated by the Georgia Public Service Commission, restriction on eminent domain (taking of private property for public use), the courts, the public schools, and private or civil relationships. They are granted specific “supplementary powers” in sixteen areas.
So, clearly, Georgia Governor Kemp’s rather strangely written executive order violates Atlanta’s home rule powers, and thus, the powers of Atlanta Mayor Keisha Lance Bottoms. The question is, will she file a lawsuit against the executive order 07.15.20.01 of Governor Kemp?