A trio of Republican state lawmakers sent a letter to U.S. Attorney General Bill Barr, asking him to examine whether Delaware has violated the constitutional rights of its citizens in the State of Emergency and various modifications ordered by Governor John Carney.
Penned by state Senators Brian Pettyjohn and Dave Wilson, and state House Rep. Ruth Briggs King and dated May 19, 2020, the six-page letter outlines what they believe to be several alleged violations of the Constitution.
A separate letter sent to the governor Tuesday, signed by 15 of the General Assembly's two dozen Republican lawmakers, urged him to reopen the state this Friday instead of waiting until June 1, saying "enough is enough."
Pettyjohn said many of his constituents, from the average citizen to attorneys, are concerned by the 18 modifications made to the State of Emergency.
"I realize that we are in exceptional times right now, but exceptional times should not usurp the constitutional protections that are provided to us all."
The Georgetown Republican said he would have liked to have seen more General Assembly involvement in these decisions--either in-person or via virtual sessions.
"I think there should have been more engagement and consent from the General Assembly in taking some of these steps that the governor's made," he said. "I do agree that there are times that the governor has to make quick decisions, and the General Assembly can be a roadblock to a quick decision, but when we are talking about renewing the State of Emergency without the General Assembly taking action, it gives me a little bit of concern."
He said the governor has spoken to members of the General Assembly throughout the crisis, but as a body, lawmakers haven't played a part in determining next steps or what restrictions are going to be enacted or lifted.
"Most of us in the General Assembly supported some of the initial steps that were taken especially because, we didn't know what was going to happen; we didn't know the scope of the problem. We were getting sent data and projection that our hospitals would be overflowing and we would have to have MASH-type hospitals out in the parking lots to be able to support the overflow. That didn't happen," he said. "As quick as we were to reign in businesses, to close businesses, we should be as quick to give them a plan to reopen and to be able to get back into the economy and get the economy going again here in Delaware."
Pettyjohn, whose town is home to a hotspot of coronavirus cases, said the public health threat and emergency tied to COVID-19 are not in question. But he did question some of the decisions that have been made, such as the ability of a big-box store staying open while smaller, specialty stores that sell some of the same items were deemed "non-essential" and forced to shutter.
"It kind of breaks that direct link between some of the actions that [the governor's taken] and the public health emergency," said Pettyjohn. "So why is it OK for one particular business to open, but another business that also sells the exact same product has to close. So there's a lot of disconnect, there's a lot of questions in there...there's just a lot of concern in terms of a lot of the rationale and thinking behind the decisions that were made."
The decisions that were made were unprecedented in nature. Described by Delaware's Division of Small Business Director Damian DeStefano, at the time, as a "complicated" process that came together quickly and aimed to balance necessity with public health for more than 300 industries.
"It picks winners and losers in this situation so an that's very concerning. We're all looking for equal protection under the law. We're all looking for every business, every person to have the same treatment under these orders, and when you look at that them...it doesn't appear that that was the case," said Pettyjohn.
Governor John Carney, who appeared frustrated, responded to lawmakers' letter at his bi-weekly coronavirus news conference.
"I'm very disappointed. I'm very disappointed in that letter because it just sounds political to me, this is not a time for politics," he said.
Pettyjohn called Carney's view "unfortunate."
"It's unfortunate that he has the view that people's livelihoods is...something political. It's not. I've been talking to many business owners, who are not going to make it out of this with their businesses in tact. Bottom line--it's not that they need more assistance; they're just not going to make it; their businesses have closed down, and they're not going to reopen."
After a series of small business town halls, Carney has said on several occasions he hears the anguish in the voices of business owners and it breaks his heart. But he's tasked with balancing public health with economic recovery.
"The bottom line, as I say all the time, is we have to have a healthier community before we can make our economy healthy again--and it's not a choice of one over the other, we have to have both, but a healthy community at some level has to be present first before we can have a recovering and healthy economy," the governor has said. "I hear the anguish in their voices. I hear the same amount of anguish in people's voices when they say, 'Don't [reopen] too soon. Protect me and my family.' And that's what we're going to try to do."
Pettyjohn said the closure of businesses should have coincided with next-day efforts to reopen businesses.
"That didn't take place for a period of time after that had happened...so what's going on right now, you have businesses that may be open, may not be open; they don't have specific guidance in terms of what they need to do. They're not even sure whether or not this capacity limit will be able to sustain their business. There are some restaurants that are saying they need to be open to at least 50% capacity in order to afford the rent, the electricity, the employees, the utilities, and the food that they're going to need to purchase...so there's a big disconnect, right now, between what the needs of the business community are and the governor, under his orders, is going to allow," said the state Senator.
Restaurants are permitted to reopen under 30% capacity when Phase 1 begins on June 1, 2020. All other retail business, the governor announced Tuesday, can reopen Wednesday, May 20, 2020, by appointment-only, with appointments limited to two per half-hour.
The governor pointed to Georgia, which he said, arguably moved too quickly to reopen its economy.
"In their first week, only 88% of the previous population in the restaurants showed up to dine at their restaurants--that's not the kind of confidence that we want to see here in our state. We're all eager to get open, and we will do it in a way that enables us to have a healthy community, to have confidence in coming back to restaurants and to other public places and where workers feel safe," Carney said.
That type of consumer confidence will be key in states' recoveries. As pointed out in his coronavirus recovery forecast last week, former University of Delaware President Pat Harker, who now leads the Federal Reserve Bank of Philadelphia, said consumers will "vote with their feet and not show up" if they don't feel safe. He called for "intelligent" reopening and warned any second wave of the virus that leads to closures, once again, could be catastrophic.
At Tuesday's news conference, DeStefano announced one step aimed at boosting consumer confidence--a voluntary checklist that businesses can fill out which certifies that they are taking steps to make their place of business safe for consumers and employees.
"What you get if you fill out the checklist and send it into us is a window cling that can go on your business that certifies that you've applied that framework that we put forward in the Phase 1 reopening, and that you can give customers a degree of confidence that the steps you are taking have been reviewed by the state and should promote a healthier workplace for your staff and your customers," DeStefano said.
Pettyjohn admitted balancing public safety with protecting liberties and consumer confidence to inspire spending, and further, feelings of safety among consumers as they spend, is a tall task.
"This is a very dynamic...situation," he said, "I think a lot of that really stems from the delay in action from the governor's office in issuing guidance to businesses when the shutdown happened. It all goes down to planning," said Pettyjohn.
On Tuesday, Carney added he's most disappointed that some of the members, who signed the letter, he's spoken to on a regular basis.
"They never led me to believe that some of the things that were in the letter were how they were feeling," he said. "That's not to say we don't disagree; we can disagree and disagree strongly; we can disagree and not be disagreeable," he said.
"Some of the tone and some of the parts of that letter are just over the line, in my view, and I'll leave it at that because this is not a time for politics."