Lawyers for political rivals argue Cooper's COVID-19 Powers

RALEIGH, N.C. (AP) — Lawyers for North Carolina Democratic Gov. Roy Cooper and Republican Lt. Gov. Dan Forest argued before a judge on Tuesday over whether Cooper’s COVID-19 orders shuttering businesses and demanding face coverings were lawfully imposed.

The hearing involving two rivals in the November election — running against each other for governor — focused on whether the Council of State needed to consent to Cooper’s executive orders first before they could be carried out.

Forest sued Cooper last month, saying the governor failed to get the concurrence of the 10-member council — composed of Forest, Cooper and eight other statewide elected officials — before orders limiting mass assemblies and commerce could be implemented.

Forest lawyer Steven Walker said the lieutenant governor acknowledges that a pandemic is occurring and that the governor has authority to respond to it. Be he has to get the council’s backing, Walker said.

“This case isn’t about politics, it’s not about science, it’s not about data,” Walker told Judge Jim Gale. “It’s about the rule of law and the interpretation of both the Emergency Management Act and the quarantine and isolation statutes.”

Gyms, bars, movie theaters, amusement parks and museums have been closed since March, and the face mask requirement began in late June. Cooper’s latest order extending these closures expires this Friday. The governor said he would announce on Wednesday whether the restrictions would continue.

Gale asked many questions during 90 minutes of video conference arguments but didn’t say how he would rule on Forest’s request to suspend Cooper’s orders for now.

Solicitor General Ryan Park, representing Cooper, said a governor has exclusive authority to act in an emergency when it’s clear a health crisis is above and beyond the ability of local governments to handle on their own.

Park said the legislative history shows that over the decades the General Assembly has shifted power during a crisis toward the governor. A majority of members on the current council is Republican.

“I don’t think there’s any reasonable reading of the statute as a whole other than the General Assembly has decided that in an emergency it wants the governor to be the primary official that is in charge of the state,” Park said.

Forest has been repeatedly critical of Cooper’s orders, saying the restrictions have devastated small businesses and led to permanent closures and job losses. He’s also questioned the effectiveness of face masks. Cooper and his allies have said both face coverings and the closure of venues where there’s higher risk for contraction of COVID-19 are helping stabilize case and hospitalization trends.

“These protections have been important and we see the results,” Cooper said at a media briefing on Tuesday about Hurricane Isaias. The number of positive cases in North Carolina since the pandemic began exceeded 128,000 on Tuesday with just over 2,000 patient deaths, state health data show. More than 1,160 people with COVID-19 are currently hospitalized.

The lawsuit is giving Forest some public attention during a campaign in which Cooper has been on television consistently for months leading the state’s COVID-19 response — and now with the storm.

The lawsuit also has said Cooper’s health director failed to go to court to seek health-related isolation and quarantine restrictions and extend orders that are longer than 30 days. Park said an early executive order citing the director’s powers was likely unnecessary and didn’t apply to the issues at hand.

Several industries and entities have been unsuccessful while suing Cooper over his executive orders since the pandemic began, although a federal judge did strike down church attendance limits that the governor set. In a separate case, Gale last month allowed several dozen bowling alleys to reopen. But the state Supreme Court suspended his decision while it reviews the case.

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