Court affirms governor's power

SANTA FE — In a unanimous verdict issued Monday, the New Mexico Supreme Court affirmed the power of the governor’s office and Department of Health to restrict or close businesses through a public health order, rather than imposing such restrictions through a rulemaking process.

The decision upheld the state’s decision to ban indoor dining in July due to the increasing spread of COVID-19. The decision was challenged by a group of New Mexico businesses, and a temporary restraining order was issued July 21 by District Court Judge Raymond L. Romero. Later that evening, the governor’s office was granted a stay by the high court.

Outside of their connections to the New Mexico Restaurant Association, local eateries did not take part in the civil suit originally filed in Eddy County.

In its decision, the court concluded the DOH was not required to follow rulemaking procedures, which can be lengthy and reqiure public comment, for emergency orders. It also rejected arguments to declare an end date to emergency orders so the Legislature could address the COVID-19 pandemic.

“New Mexico has not entered a ‘new normal,’ nor do the temporary emergency orders constitute ‘long-term policy’ decisions,” read the opinion written by former Justice Judith Nakamura. “The argument that special sessions of the Legislature should be used in lieu of Petitioners’ emergency orders is so facially unworkable that it only reinforces the conclusion that it was appropriate for the Legislature to grant the executive branch ample authority to immediately and flexibly respond to a public health emergency.”

Chief Justice Michael E. Vigil did not participate in the case.

Justice David K. Thomson wrote a concurring opinion warning the “broad and vague statutes” that grant emergency powers to the governor’s office, along with deference given to the office in emergencies, may provide long-term consequences to checks and balances.

He warned the executive office still have an obligation to show something is an emergency and that the means to address it are reasonable.”

“The majority’s holding should not communicate that executive or legislative responses to the pandemic will always receive the same level of judicial deference as when the crisis first emerged,” Thomson wrote. “I believe we must be wary of the precedent we set beyond the scope of the COVID-19 crisis.”