EDITORIAL: Gov. Steve Sisolak’s emergency powers and the state courts

Clark County tavern owners on Monday lost a lawsuit regarding Gov. Steve Sisolak’s coronavirus edict that led many bars to shut their doors. Judge Kerry Earley ruled that “economic rights, such as alleged by plaintiffs, are not recognized as fundamental constitutional rights.” That’s interesting.

Judge Earley heard arguments in the case on Friday. Some 62 Southern Nevada business owners maintained that the governor’s directive, which ordered bars that don’t serve food to close and prohibited taverns from utilizing their bar-top gambling machines, arbitrarily singled out a particular business. The state responded that the governor was acting within his emergency powers in an effort to control the pandemic.

It’s worth noting that, despite the order, many Southern Nevada bars remain open. While customers may not occupy seats at the bar itself, they are free to sit just a few feet away for table service. How that distinction prevents the spread of coronavirus has not been explained. While some businesses have opted to shut down without the gaming revenue, others have hauled in stand-alone video poker machines and placed them away from the bar-tops. Some have even removed their machines from the bar-tops and relocated them to makeshift consoles throughout the tavern.

Never let it be said that the Nevada entrepreneur lacks creativity.

Judge Earley vowed a quick decision, and her comments from the bench last week revealed her reluctance to contradict Gov. Sisolak. At one point during the hearing, she suggested she may not have the authority to overrule the governor’s action. “What is the law that says I have a duty to review the state action on an ongoing basis?” the judge asked. An attorney for the state replied that the decision was up to Gov. Sisolak, not the court, to weigh the “balance of hardship and the public interest.”

This is an interesting concept — and highly dangerous. Regardless of how one feels about the governor’s mandate regarding bars, the idea that the courts have no role in scrutinizing the actions of the executive branch represents an endorsement of tyranny. If the governor has unchecked power to arbitrarily impose any decree in the name of public health, we no longer live in a representative democracy with three equal branches of government constrained by checks and balances.

In fact, courts in some states have reversed or overruled gubernatorial coronavirus edicts. The U.S. Supreme Court weighed in on Gov. Sisolak’s decision to treat churches differently than casinos in terms of capacity limitations. The justices made no mention of the idea that they lacked the standing to intervene. Marbury v. Madison, anyone?

State law grants Gov. Sisolak emergency powers. But the courts would be derelict if they failed to hold him accountable for exceeding his authority. Judge Earley’s hesitation to enter the fray presaged her decision.

A previous version of this editorial misspelled Judge Kerry Earley’s name.