Skip to main content

Oklahoma Mayors Acted Unlawfully With COVID-19 Orders


In response to COVID-19, the mayors of Oklahoma’s three largest cities subjected their citizens to draconian shelter in place orders, restricting their freedom, damaging them financially, and undermining their constitutional rights. The mayoral decrees were more restrictive than those of the Governor, and in significant ways contradicted his policy. To this day, city-mandated social distancing rules remain in place in Oklahoma City, Tulsa, and Norman that are not required by the state’s reopening plan. The mayors claim that where their rules are more restrictive than the state’s, the city rules apply.

Was any of this unilateral mayoral activity legally valid?

For the reasons examined in my paper published today, An Argument Oklahoma’s Mayors Acted Unlawfully During COVID-19, the short answer is no. (A summary of the paper can be found here.)

A close examination of relevant city ordinances and state laws governing the mayors’ COVID-19 decrees forces the conclusion that the mayors were on extremely shaky—possibly nonexistent—legal ground. This is largely because the mayors issued their orders under city ordinances arising out of a state law intended to combat riots and looting, not pandemics. 

This conclusion isn’t shocking given the name of the relevant state law, “The Riot Control and Prevention Act of 1968” (the RCPA). The law is a relic of the late 1960s’ social unrest brought on by racial tensions and the Vietnam War. American cities like Detroit burned in 1967 and 1968, and riots were a regular feature of Oklahoma news reports at the time.

More important than the laws’ history, the plain language of the RCPA and city ordinances reveal they are not applicable to infectious diseases or pandemics. The laws contemplate emergency government action during riots or in the wake of natural disasters (like extreme weather events) where rioting or looting might be a real threat. The mayors have shoehorned COVID-19 into the category of a natural disaster in order to justify their actions, which does not comport with the text of the city ordinances or the RCPA.

Similarly, if the RCPA and city ordinances were intended to apply to pandemics as the mayors claim, the authors of those laws chose an odd toolkit of emergency powers to confer on the governor and mayors. The RCPA gives the governor the power to do things like imposing a curfew, restricting alcohol and flammable liquids, and banning Molotov cocktails. The city ordinances are much the same. It is easy to see why the power to ban alcohol sales might be handy during a riot, but giving this power to the governor to fight a pandemic is a bit like giving him an accordion for a hunting trip.

Simply put, the mayors of Oklahoma City, Tulsa, and Norman overstepped their legal authority. The riot control law and city ordinances are not general emergency powers laws that can be trotted out to deal with just any challenging situation the state faces. They were intended to apply only in narrow circumstances, and it is a stretch for mayors to justify pandemic orders under these laws. My paper lays out the legal particularities in detail.

The consequence of the mayors’ overreach may be costly litigation. But litigation cannot repair the damage suffered by the residents of these cities (about 2/3 of the state’s population). The best that can be hoped for is swift action by state officials to end the current discrepancies between the state and local rules, and legislation to prevent this situation from happening in the future.

To end the current patchwork of rules, the governor and attorney general can take a firm position with mayors, making clear that to the extent city rules contradict state rules, they are legally invalid. An Attorney General Opinion following the analysis contained in my paper could be legally binding on the mayors, instantly resolving the state-local policy discrepancies. Even a non-binding legal opinion from the attorney general carries great weight, as seen when the mayor of Norman recently backed off restrictions on churches.

To prevent any future misapplications of emergency powers laws, the legislature can do two things: (1) codify existing Supreme Court precedent into statute, explicitly re-affirming that city ordinances inconsistent with state law are legally invalid; and (2) re-evaluate whether emergency powers statutes are even necessary to begin with. If COVID-19 has demonstrated anything, it is that when given extraordinary powers, government officials overreach. American society experienced emergencies before there were emergency response statutes, and there is little indication government lacked the authority it needed to respond appropriately.

As for the mayors, we have already seen constitutional litigation challenging their activities, and as my paper makes clear, additional statutory grounds exist that citizens could pursue in litigation. Litigation of this nature is an uphill climb for citizens, but the difficulty of succeeding with a claim does not excuse the mayors’ failure to adhere to the law. If the strongest legal argument justifying these mayors’ actions is that it’s hard for citizens to prevail in court, that is no defense at all. Elected officials are sworn to uphold the law, not to uphold the law only to the extent someone can successfully prosecute a lawsuit against them.

At a minimum, we should be asking questions of the mayors, and the mayors should be providing detailed explanations of the legal authority for their actions. The fact that they have not already done so reflects poorly on their administrations as well as their legal positions.

Benjamin Lepak is Legal Fellow at the 1889 Institute. He can be reached at blepak@1889institute.org.

The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.

Popular posts from this blog

Licensing Boards Might Violate Federal Law: Regardless, They Are Terrible Policy

Competition is as American as baseball and apple pie. “May the best man win” is a sentiment so old it doesn’t care about your pronouns. The beneficial effects of competition on economic markets are well documented. So why do we let powerful business interests change the rules of the game when they tire of competing in the free market? Most of the time when an occupational license is enacted, it is the members of the regulated industry who push hardest in favor of the license. Honest competition may be fundamentally American, but thwarting that competition through licensing seems to be fundamentally Oklahoman. Oklahoma doesn’t have the most occupational licenses, but when they do license an occupation, the requirements tend to be more onerous than the same license in other states. But what if, instead of merely breaking the rules of fair play to keep out would-be competition, Oklahoma licensing boards are also breaking the law? Normally a concerted effort to lock out competition would v

Undo 802

Why is it that when conservatives suffer a major loss, they give up, accept the new status quo, and fall back to the next retreat position? When progressives suffer a major loss, they regroup and try again. And again. Until they finally wheedle the American public into giving in. I propose a change in strategy. The Oklahoma Legislature should make undoing State Question 802 its top legislative priority for 2021. This will not be an easy task (legislators seem to prefer avoiding difficult tasks) but it is a critical one. The normal legislative process, with all its pitfalls and traps for the unwary, will only bring the topic to another vote of the people. So why spend so much political capital and effort if the same result is possible? Three reasons.   First is the disastrous consequences of the policy. Forget that it enriches already-rich hospital and pharmaceutical executives. Forget that it gives the state incentives to prioritize the nearly-poor covered by expansion over the des

Cronyism: Feature, Not a Bug, for Used Car Dealer Licensing

Used car dealers in Oklahoma are governed by the Oklahoma Used Motor Vehicle and Parts Commission (UMPV). Like most licensing boards, it is made up of industry insiders. The UMVP's stated mission is to protect consumers from harm, but its structure and history indicate that its primary concern might be protecting licensed dealers from competition. This, of course, is the prime directive of all licensing boards. My recent paper deals with the licensing of used car dealers.   The person hit hardest by this is the hobbyist, especially in times of economic turmoil.   Imagine someone stuck at home due to coronavirus. We'll call him Frank. He can’t work due to the economic shutdown. Unfortunately, Frank’s lack of work does not mean he no longer has to put food on the table for his family. Fortunately for him, he is able to find a good deal on a used car that needs a little work. Frank has all the tools and garage space necessary to fix up the car and isn't violating any quar

A Simple Way to Improve Oklahoma’s Selection of Judges: Open Up the Process

The synod has finished its secret meetings and taken its vote behind closed doors. The public waits with bated breath (well, some of us) to get a glimpse at the new high priest who will don his formal vestments and take his seat at the commanding heights of doctrinal authority. Who will it be? Who will it be?! Then, as if delivered from the heavens, the names appear in a short announcement tucked in an obscure corner of the internet . WE HAVE CHOSEN. I am not describing the last papal conclave . I am describing Oklahoma’s unnecessarily mysterious process for selecting Supreme Court justices. All we are missing is the plume of white smoke. The nuances of the judicial selection methods employed by the 50 states are as varied as the cuisine. Some utilize elections, some gubernatorial appointments, some even have legislative appointments. We have commented on the relative strengths and weaknesses of these various methods, and will continue to do so, but some things are so f