The Daily Brew: Coming up on one year since the first stay-at-home order

Welcome to the Thursday, March 11, Brew. Here’s what’s in store for you as you start your day:

  1. Coming up on one year since the first stay-at-home order
  2. Twelve states sue Biden administration over emissions executive order
  3. Chief Justice Roberts was the lone dissenter for the first time

Coming up on one year since the first stay-at-home order

On March 13, 2020, President Donald Trump declared a national emergency in response to COVID-19. Six days later, on March 19, 2020, California Gov. Gavin Newsom (D) issued the nation’s first stay-at-home order. Let’s take a look back at the orders and how those first few weeks played out last year.

Although the specifics of each stay-at-home order varied from state to state, they all closed certain categories of businesses and required people to stay home unless doing activities designated as essential, such as grocery shopping or working in essential businesses.

In the three weeks that followed Newsom’s order, 42 additional governors issued stay-at-home orders. South Carolina was the last state to issue an order—on April 7, 2020. All states with Democratic governors at that time (24) issued stay-at-home orders in their states, while 19 of the 26 Republican governors did so.

Seven states—Arkansas, Iowa, Nebraska, North Dakota, South Dakota, Utah, and Wyoming—did not issue stay-at-home orders

We broke down the duration of stay-at-home orders by trifecta status. As a reminder, a party has trifecta control of state government when it holds the governor’s office and majorities in both chambers of the legislature. 

Here is the median duration of coronavirus-related stay-at-home orders by trifecta status:

  • States with Republican trifectas: 31.0 days
  • States with Democratic trifectas: 68.0 days 
  • States with divided government: 52.5 days 

Alaska was the first state to end its stay-at-home order on April 24, and Montana and Colorado did the same on April 26. By June 29, Ballotpedia’s COVID-19 news team classified all but two stay-at-home orders as expired.

We considered California’s stay-at-home order as active until Dec. 3, 2020, because Newsom’s original executive order did not have an expiration date, and it was not explicitly rescinded. Newsom issued regional stay-at-home orders on Dec. 3. We classified New Mexico’s stay-at-home order as active through Nov. 30 because the state’s health department said since March 2020 that “all New Mexicans should be staying in their homes for all but the most essential activities and services.”

While stay-at-home orders have expired in all states, debate and legislative action over gubernatorial emergency powers continue this year. For example:

  • As I wrote in February, the Pennsylvania Legislature approved a ballot initiative for a constitutional amendment that would end emergency disaster declarations after 21 days unless the General Assembly approved extensions. If voters approve the amendment on May 18, the legislature could end the state’s coronavirus emergency order, including the mask requirement.
  • On March 1, the South Carolina House of Representatives passed a bill 109-3 that would give the legislature more oversight over governors’ executive orders. The bill would allow the legislature to review executive orders and extend, amend, or end them after 30 days. The state Senate has not yet considered the bill. Gov. Henry McMaster said he supports the legislation. 

In the coming weeks, we’ll be looking back at milestones in the country’s response to the COVID-19 pandemic that happened one year ago each week.

Read on 

Twelve states sue Biden administration over emissions executive order

Twelve states filed a lawsuit against the Biden administration on March 8, alleging that the administration violated the separation of powers in a Jan. 20 executive order.

Missouri Attorney General Eric Schmitt (R) is leading 12 states in the suit: Missouri, Arizona, Arkansas, Indiana, Kansas, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, and Utah. All 12 states have Republican attorneys general. 

There are 24 Republican and 23 Democratic attorneys general. One is nonpartisan, and two are acting attorneys general for whom we don’t have affiliation information. The following map shows which states’ attorneys general signed onto the lawsuit.

Biden ordered agencies to account for the social cost of greenhouse emissions. The order states that the social costs of carbon, nitrous oxide, and methane are estimates of monetized damages “intended to include changes in net agricultural productivity, human health, property damage from increased flood risk, and the value of ecosystem services.” The order states that this calculation is necessary for cost-benefit analyses of regulatory actions.

The lawsuit states that setting the social cost “is an inherently speculative, policy-laden, and indeterminate task, which involves attempting to predict such unknowable contingencies as future human migrations, international conflicts, and global catastrophes for hundreds of years into the future. Assigning such values is a quintessentially legislative action that falls within Congress’s exclusive authority under Article I, Section 1 of the Constitution.”

This is the first multistate lawsuit filed against the Biden administration. The following data is from the State Litigation and AG Activity Database. Of the six previous administrations, George H.W. Bush’s (R) administration saw the fewest multistate lawsuits—20. Donald Trump’s (R) administration had the most at 156.

Here is the average number of multistate lawsuits per year by administration:

  • Reagan: 3.75
  • H.W. Bush: 5
  • Clinton: 5.25
  • W. Bush: 9.5
  • Obama: 9.75
  • Trump: 39

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Chief Justice Roberts was the lone dissenter for the first time

On March 8, U.S. Supreme Court Chief Justice John Roberts filed his first lone dissent since joining the court in 2005. A lone dissent is when only one judge casts a dissenting vote on a case.

The court issued an 8-1 opinion in Uzuegbunam v. Preczewski concerning whether nominal damages claims provide legal standing in federal cases. Nominal damages claims are when a judge finds in favor of one party in a lawsuit but concludes that no real harm was done and therefore awards a very small amount of monetary relief. The court held that awarding nominal damages provides legal standing in a case, meaning that the plaintiff has the legal right to sue. 

Roberts filed a dissenting opinion, concluding that nominal damages claims are not a sufficient basis for Article III legal standing in a case. It was the first time where he was the only justice that dissented on a case argued before the Court. 

William Rehnquist, who was chief justice from 1986-2005, was the lone dissenter nine times during his term. 

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