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Legal Implications Of Georgia Gov. Kemp's Decision To Reopen State

MICHEL MARTIN, HOST:

We're going to stay in Georgia a little longer, but we're going to focus now on the legal implications of Governor Kemp's decision to try to begin reopening the economy. We're particularly interested in what it means when state and city leaders seem to have very different ideas about what's in the public interest. We've called on Dr. Fazal Khan for this. He is trained as both a physician and a lawyer, and he now teaches public health law at the University of Georgia School of Law.

Dr. Khan, professor Khan, welcome. Thank you so much for joining us.

FAZAL KHAN: Well, thank you for having me on.

MARTIN: Well, first of all, recognizing that most people in public life never experience something like this and are probably sort of sorting their way through this, can you help us sort out what authorities the governor has and how that differs from what local governments can do?

And the reason I ask is that I'm imagining that in a typical public sort of a disaster that we're used to thinking about - a hurricane or tornado - I'm imagining there probably isn't that much of a difference of opinion about what needs to happen. But in this case, what - how did the authorities sort out when there's a difference of opinion?

KHAN: Sure. The state governments are sovereign, independent entities, right? And they have under the Constitution these really broad - what are known as police powers, which enable states to enact and enforce laws to protect public health and welfare. And underneath the states, you have the county local governments, which are subordinate governmental entities to the state government. So they exist as creations of state law.

So what that means is the state law, if the governor has an order or directive, and it contradicts the state laws, the state order reigns supreme. So it's analogous if there is, say, a federal law that states contradicted with. In that case, the Supremacy Clause of the Constitution would say the federal law would kind of trump, so to speak, the state law.

MARTIN: OK. So you teach in Athens, Ga., which passed one of the state's first shelter-in-place orders. Given the governor's plans to begin reopening the economy or allowing businesses to function that, you know, had previously been shut down, do city governments have any authority if they want to slow - if they don't agree, if they think it is too soon, if their judgment about what's in the public interest differs from his? Can they do anything?

KHAN: I was actually involved in that process. So, you know, one of my former law students who's now lawyer and council member in Athens, you know, approached me for my advice on, you know, should we have shelter-in-place order? And I advised them that yeah, that made sense. You know, based on the modelling and the data that if we didn't flatten the curve, you know, we can overwhelm a health care system.

At that point in time, when Athens issued the shelter-in-place order, the state was silent on what the restrictions should be. But with this new order that Governor Kemp recently announced, it sets really a ceiling - that localities can't be more stringent than the rules that he has set statewide. And so the short answer is no, that the localities and counties don't have the legal authority to contravene or enforce stricter shelter-in-place or shutdown orders than what the governor has ordered right now.

MARTIN: Wearing both your physician hat and your lawyer hat, do you have any concerns about this? I mean, I'm thinking of a scenario...

KHAN: Absolutely.

MARTIN: Let's say employees work at a salon, right? And the salon owner feels that he or she needs to reopen because they're - you know, they need the business. But employees don't want to work there because they don't feel that it's safe. I mean, so I'm asking you, wearing both your physician hat and your lawyer hat, if you could sort of distinguish those two, can you just - do you have...

KHAN: Sure.

MARTIN: ...Any concerns about this?

KHAN: Absolutely. I mean, I have very serious concerns. So as a policy matter, I strongly disagree with the governor's order to kind of reopen this soon given the facts that we know - that we haven't seen a decrease for over two weeks of infections in Georgia. And that comes from, you know, President Trump's own recommendations - that in order to reopen - so-called phase one reopening - we'd need to see that decline. We haven't seen that yet. So as a policy matter, I am very concerned.

And as for workers who are now being told that, OK, now it's safe to reopen - and right now, a lot of them are collecting unemployment insurance because conditions aren't really safe to go back to work - they might face a prospect of not getting those unemployment benefits if they refuse to go back to work when their employer is saying go back. So they're placed in a really challenging position.

MARTIN: So before we let you go, what would be helpful here? Since, given that a number of governors - Governor Kemp primarily among them so far - seem determined to allow businesses to reopen and other services, what would be helpful?

KHAN: First, I'd say, you know, just reconsider and listen to your local, you know, city and county partners and what they're telling is happening on the ground and what their capacity is. But as you said, if they're determined to do this, test, test and test. And then do contact tracing.

And, you know, if, you know, the federal government - you know, Trump White House - is encouraging states to reopen, I would say it's part of this bargain. OK. You're doing this experiment on us, right - all these Georgians. Give us the resources to do adequate testing and contact tracing so we can know, what are the consequences of this earlier-than-recommended reopening based on the models that we have?

MARTIN: That was Dr. Fazal Khan. He is trained as a physician and a lawyer, and he teaches public health law at the University Of Georgia School of Law.

Dr. Khan, professor Khan, thank you so much for joining us.

KHAN: Thank you. My pleasure.

(SOUNDBITE OF HIT CREW MASTERS' "RAINY NIGHT IN GEORGIA INSTRUMENTAL VERSION") Transcript provided by NPR, Copyright NPR.