Awaiting Orders



The Tulsa World reports that "medical leaders" are asking Oklahoma Governor Stitt to issue a shelter-in-place order.  The headline uses the word, "order," but the letter to the governor, signed by fifteen medical organizations, uses the word, "policy," rather than "order."  There is a significant difference between a governmental policy and an order directed to the citizens.  But since the letter urges the governor to follow the example of California Governor Newsom, whose shelter-in-place directive clearly "orders" California citizens to stay in their homes, I will assume these organizations intend for the "policy" to really be an order.

I hope Governor Stitt resists this and other urging to adopt an authoritarian role, ordering citizens about.  I'm pleased that he has stood firm up until now, but I would be more encouraged if he would state forthrightly that it is a moot question, since he does not possess the authority to order citizens about.  He is to take direction from the citizens, and not the other way around.  But instead, he has merely stated that the time is not right, which implies that he believes his office is indeed invested with such authority.

The "medical leaders" do not indicate in their letter from where the governor would derive such authority, but presume that he has it.  I thought it worth while to do my own search and analysis.  I will begin with the Oklahoma Constitution.  I will list what I see as the relevant provisions.

Bill of Rights, Sec. 1 - Political Power

All political power is inherent in the people; and government is instituted for their protection, security, and benefit, and to promote their general welfare; and they have the right to alter or reform the same whenever the public good may require it: Provided, such change be not repugnant to the Constitution of the United States.


All political power is inherent in the people.  Therefore the state government possesses only the political powers delegated to it by the people.


Bill of Rights, Sec. 2 - Inherent Rights

All persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry.



One cannot have liberty and be confined to one's home.  Confinement, whether at home or in a jail cell may occur, but only after due process of law -- not by decree by a single individual.  


Bill of Rights, Sec. 3 - Right of Assembly


The people have the right peaceably to assemble for their own good, and to apply to those invested with the powers of government for redress of grievances by petition, address, or remonstrance.



My right to peaceably assemble is obviously infringed if I am not permitted to leave my house.


Bill of Rights, Sec. 7 - Due Process of Law


No person shall be deprived of life, liberty, or property, without due process of law.


I am being deprived of liberty when I am confined to my home.  "Due process" is more than a process that you do.  It is more than a decree by the governor.  


Bill of Rights, Sec. 10 - Habeas Corpus


The privilege of the writ of habeas corpus shall never be suspended by the authorities of this State.


If I am confined, regardless of where it may be, and I am denied a right to review of that confinement by a court, then the writ of habeas corpus has effectively been suspended.  Notice that the privilege does not have exceptions for plague, war, alien invasion, or whatever very good reason the state's top politician claims to have.  The privilege shall "never" be suspended.


Bill of Rights, Sec. 30 - Unreasonable Searches or Seizures


The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.


My person may not be seized without a warrant, or upon probable cause subject to judicial review.  A stay-in-place order would not be based on probable cause or a warrant, nor would there be an avenue for review.


Art. 4, Sec. 1 - Departments of Government


The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others.


This means that the governor, as the chief executive, cannot act in a legislative role.  He can only execute those laws which the legislature (or the people) has enacted.  He cannot grant to himself the authority to order the confinement of the entire populace.  


Art. 5, Sec. 36 - Extent of Legislative Authority


The authority of the Legislature shall extend to all rightful subjects of legislation, and any specific grant of authority in this Constitution, upon any subject whatsoever, shall not work a restriction, limitation, or exclusion of such authority upon the same or any other subject or subjects whatsoever.


This recognizes broad legislative authority -- broader that the authority granted to Congress under the U.S. Constitution.  This authority would still necessarily be limited by the State's Bill of Rights, including all those Sections reproduced above.  But because the legislature may use this broad authority to grant powers to the governor, I will review the Oklahoma statutes for any statutory authority for the governor to issue a shelter-in-place order.  That is what follows.


63 O.S. Sec. 1-504 - Quarantine



A. Whenever a local health officer determines or suspects that a person has been exposed to and may be incubating a communicable disease of public health concern, the local health officer may impose a quarantine upon such person and require such person to remain out of public contact and in the place or premises where such person usually stays. Notice thereof shall be given in accordance with the rules and regulations of the State Board of Health. It shall be unlawful for such person, or any other person, to violate the terms or conditions of the quarantine.
B. Whenever a local health officer determines or suspects that a person has a communicable disease of public health concern, the local health officer may impose isolation upon such person and require such person to remain out of public contact and in an adequate treatment facility or in the place or premises where such person usually stays. Notice thereof shall be given in accordance with the rules and regulations of the State Board of Health. It shall be unlawful for such person, or any other person, to violate the terms or conditions of the isolation.
C. District courts shall be authorized to grant injunctive relief, including temporary injunctions and temporary restraining orders, to compel compliance with a quarantine or isolation order issued by a local health officer pursuant to this section.
Notice that these quarantine powers are very limited.  They require determination, or at least suspicion, by a local health official that a person has been exposed to and may be incubating a communicable disease.  It does not grant to any health officer, or to the governor, the authority to quarantine healthy people for their own protection or the protection of others.  
Also notice that if someone refuses a quarantine directive, an injunction must be sought from a district court to compel compliance.  
63 O.S. Sec. 1-505 - Removal of Diseased Persons
A local health officer may cause any person in his jurisdiction, found to be infected with a communicable disease, to be removed to a hospital or other place for the reception of infected persons, unless such person be sick in his own place of residence or cannot be moved without danger to his life.
A person "found to be infected" may be removed.  Once again, there is no authorization for suspending the liberty of healthy individuals. 
I acknowledge that my review of the Oklahoma statutes was not a thorough one, and I may have missed an additional grant of authority to the governor, but nothing I found would support a "stay-in-place order."  If the "medical leaders" who are writing to the governor are going to urge governmental action rather than medical action, they need to be prepared to identify the source of the governmental authority they want flexed.  I don't see it.  If the governor does not have the authority to issue a stay-in-place order, it is not relevant whether such an order would be advisable, and it would be a fearful usurpation for the governor to act without the authority.