Documenting America’s Path to Recovery: September 3, 2020

Welcome to Documenting America’s Path to Recovery, where we track the status of reopening in all 50 states. Today we look at Idaho’s decision to remain in Phase Four of reopening, New York’s announcement that casinos can reopen next week, a lawsuit involving COVID-19 restrictions in Minnesota, and much more. Want to know what happened yesterday? Click here.

The next 24 hours

What is changing in the next 24 hours?

  • Maryland (divided government): On Sept. 4, Maryland will enter Phase 3 of reopening. Retail stores and religious services will be allowed to increase capacity from 50 to 75 percent. Outdoor entertainment venues may reopen with a capacity of 250 people. Movie theaters and indoor entertainment venues may reopen at 50 percent capacity or up to 100 people.
  • New Jersey (Democratic trifecta): Indoor dining services and movie theaters will be able to reopen starting Sept. 4.
  • Utah (Republican trifecta): On Sept. 2, Gov. Gary Herbert (R) announced that Salt Lake City would move from the orange to the yellow phase of reopening. Under the yellow phase, private gatherings of up to 50 people are permitted. The orange phase limited gatherings to 20 people or fewer.

Since our last edition

What is open in each state? For a continually updated article on reopening status in all 50 states, click here.

  • Colorado (Democratic trifecta): Gov. Jared Polis (D) announced a partnership with T-Mobile to provide a free WiFi hotspot and 100GB of data to 34,000 low-income student households.
  • Delaware (Democratic trifecta): Gov. John Carney (D) released guidance for fall sports. The guidance categorizes sports by risk level (high, medium, or low) and provides mask and social distancing guidelines for each risk level.
  • Idaho (Republican trifecta): Gov. Brad Little (R) announced the state will remain in Phase Four for at least two more weeks. Idaho entered Phase Four on June 13.
  • Michigan (divided government): On Thursday, Sept. 3, Gov. Gretchen Whitmer (D) announced that gyms and pools could reopen with restrictions on Sept. 9. Gyms will be limited to operating at 25% capacity. Whitmer also announced that youth sports could resume in parts of the state where they are still restricted.
  • New York (Democratic trifecta): Gov. Andrew Cuomo (D) announced malls in New York City and casinos statewide will be able to reopen starting Sept. 9.
  • Ohio (Republican trifecta): On Sept. 3, Gov. Mike DeWine (R) announced the details of a forthcoming health order that will require school staff and parents or guardians of students to notify schools within 24 hours of receiving a positive COVID-19 test result. The order will go into effect Sept. 8.

Daily feature: Featured lawsuit

Once a week, we take a closer look at a noteworthy lawsuit involving governmental responses to the COVID-19 outbreak in the United States. We define a noteworthy lawsuit as one that has garnered significant media attention, involves major advocacy groups, or deals with unique legal questions. This week, we look at a lawsuit involving COVID-19 restrictions in Minnesota.

Free Minnesota Small Business Coalition v. Walz

On Sept. 1, Judge Thomas Gilligan of Minnesota’s Ramsey County District Court dismissed a lawsuit 13 Republican lawmakers and a group of small businesses filed challenging Gov. Tim Walz’s (D) COVID-19-related executive orders.

What is at issue?

The plaintiffs alleged the orders were legislative actions, which cannot be delegated to the governor according to the state constitution’s nondelegation doctrine. The plaintiffs further alleged that Walz exceeded his statutory authority under the Minnesota Emergency Management Act, saying that public health is not a permissible rationale for invoking emergency powers. Lastly, the plaintiffs said that Walz’s orders treated similarly situated businesses differently, violating the equal protection guarantee.

How did the court rule?

Gilligan dismissed the suit, writing, “[The] Governor has acted pursuant to the authority delegated to him by the Legislature. … [The] COVID-19 pandemic constitutes an act of nature that provides the Governor with the basis to declare a peacetime state of emergency in Minnesota.” Gilligan said that subjecting the governor’s emergency actions to “a notice and comment period, public hearings, and review by an administrative law judge” would be “cumbersome and unreasonable.”

What were the reactions, and what comes next?

The lead plaintiffs said they “will continue the fight, by all means necessary to restore the voice and will of the People, through their representatives in the legislature, to decision-making in state government.” They also set up a fundraising campaign to pay for an appeal. Walz has not commented publicly on the suit.

Additional activity

In this section, we feature examples of other federal, state, and local government activity, private industry responses, and lawsuits related to the pandemic.

  • Both Montgomery County and Prince George’s County announced they would not proceed to Phase Three of reopening with the rest of Maryland beginning Sept. 4.
  • Lincoln-Lancaster County Health Director Pat Lopez announced the county would remain in its current reopening phase through the end of September. A statewide directive is scheduled to move all of Nebraska into Phase Four on Sept. 14.