As expected, Governor Hutchinson has filed a formal statement in the lawsuits challenging Act 1002, the ban on mask mandates in public schools and other state agencies, saying he believes the law is unconstitutional.
He repeats, through his lawyer David Matthews, the arguments he made in unsuccessfully asking the legislature to amend the law to give power to local school districts to decide their own rules. Judge Tim Fox has blocked the ban law saying it was unconstitutional. Attorney General Leslie Rutledge is defending the law.
The governor got his own lawyer to stake out his position, as have leaders of the House and Senate.
Said the governor’s filing:
The Governor’s position remains the same in responding to the three consolidated Complaints which name him, in his official capacity, as a defendant. He has consistently expressed concern about Arkansas’s children under 12 who are ineligible to receive a COVID-19 vaccine, but who are also required to attend school. He has observed that even if school openings were delayed, the same issue would exist: children under 12 would not be able to be vaccinated.18 Although the Governor does not approve of a state-wide mask mandate, he is in favor of school districts independently exercising that option. Finally, although named as a defendant, the Governor supports and agrees with the August 6, 2021 Order which held Act 1002 to be unconstitutional.
Here’s his full pleading responding to questions raised in complaints from parents, the Little Rock School District and Pulaski County officials for an order to block the law.
He acknowledges signing the law, regretting it and seeking to amend it. But he also says the law he signed “violates the separation of powers doctrine set out in Article 4 § 2.” And he also says the legislature acted unconstitutionally to “usurp the Governor’s exclusive constitutional authority as commander-in-chief of the military and naval forces of the State set out in Article 6 § 6 of the Constitution of Arkansas.”
He also says the legislature has “unconstitutionally restricted the Governor’s emergency powers which are vested in the Governor by Ark. Code Ann. §§ 12-75-101 et seq.”
PS: The governor notes a blunder in drafting three laws related to the governor’s power and COVID, including the ban on vaccination passports. We’ve written about this before, but it could provide an avenue to strike them all down. Read here:
The not-ready-for-prime-time Arkansas legislature: When do COVID laws take effect, if they take effect at all?