Update on the lawsuit against the West Virginia Governor’s COVID executive orders

The West Virginia Governor finally submitted his response to our Petition for Writ of Mandamus currently pending before the West Virginia Supreme Court, which challenges his COVID-19 executive orders, closing the state’s economy, among other things. Here’s our petition, if you haven’t read it:

Here is the response brief submitted on behalf of Gov. Justice:

At this point, the Court can now rule on the petition by issuing a written opinion, or can schedule oral arguments. Here’s my initial thoughts on the response. It was written by the Solicitor General under the West Virginia Attorney General, rather than by anyone actually in the Governor’s office, or hired by him. Thus, I think the takeaway from what I see here is a lackluster argument about procedure, rather than a position on the constitutional issues presented. It seems to me that what’s more important, is what went un-said, rather than what was said.

The Governor’s response doesn’t really contest the allegations that he’s acted beyond his constitutional limitations, but rather argues that it should be up to the legislature to stop him, rather than the judicial branch. If that’s the case, then what’s the point of having a judicial branch? It is exactly the purpose of the West Virginia Supreme Court to review questions regarding the extent of the Governor’s executive powers. While they argue that it should be submitted to a circuit court judge first, it would still go right back to the Supreme Court to be decided. It would just cause delay.

Again, reading between the lines here, my takeaway from their filing is, they sent an implicit message to the Court that, so long as they sufficiently address and decide the procedural questions, the Attorney General’s position is that there’s no substantive defense to the constitutional issues. Therefore, if the Court desires the case to go before a circuit court judge first, for some reason, then we can do that, and at some point the constitutional powers issues must still be addressed. I’d be more worried if I saw a convincing substantive argument about emergency powers and its interaction with the state constitution. But I didn’t see one.

As far as the procedural questions go, the response brief focuses on the legislature’s ability to use a supermajority to call itself into session. However, this is a red-herring. Whether or not the legislature is willing, or able, to do its job, or to reign in an out-of-control governor, is besides the point. Maybe they could do it if they had a supermajority. But that doesn’t have any bearing on the issue of the extent of the Governor’s executive powers. He either has the constitutional ability to do what he’s been doing; or he doesn’t. That’s like saying that President Trump can be dictator until Congress steps in to stop him. No. He can’t be a dictator, regardless of whatever Congress does, or doesn’t do. These two things are being conflated.

But all in all, I see the response as implicitly supportive on the underlying constitutional arguments. That being said, we’ll just have to wait and see what the Court does. The issues aren’t going away. If they want us to go to circuit court, we’ll go to circuit court. If they want us to serve pre-suit notice, even though it’s not required, we’ll do that and return. If we have to go to federal court to find relief….. we’ll go there. We will obtain judicial review.

From the day we filed:

1 thought on “Update on the lawsuit against the West Virginia Governor’s COVID executive orders

  1. Pingback: Today’s New West Virginia Mandatory Face Covering “Law” | WV Civil Rights Lawyer

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