No matter how one views the current restrictions in place to combat the COVID pandemic – either as necessary burdens to fight against an invisible enemy or as onerous government overreach oppressing individual freedoms – there is little doubt that the statutory epicenter of those restrictions is constitutionally infirm. Without prompt amendments, the State and its taxpayers are at risk of adverse legal consequences.

Indeed, in a speech at last month’s Federalist Society National Lawyers Convention, United States Supreme Court Justice Samuel Alito called out NRS 414.070(7), the Nevada statute under which Gov. Steve Sisolak has exercised the authority to impose wide-sweeping restrictions. Justice Alito emphasized that he was not passing judgment, but there is no question that the statute violates Nevada’s separation of powers by delegating to the Executive the Legislature’s sole prerogative to make laws governing private conduct during a statewide emergency.

The government’s tripartite powers are not merely socially distanced – they are designed to be completely separate.  

The separation of powers has long been recognized as vital to the protection of liberty. James Madison recognized that “[t]here can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.”

Nevada’s Constitution is particularly protective of the separation of powers. Unlike the U.S. Constitution, the Nevada Constitution contains an express provision creating a sharp break between the branches of government. Article 3, Section 1(1) divides the powers of government into the legislative, executive, and judicial departments. It states “no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others, except in the cases expressly directed or permitted in this constitution.”

The “nondelegation doctrine” arises from this constitutional prohibition. The Legislature violates the nondelegation doctrine when it enacts a statute authorizing the Executive to exercise the legislative power to impose generally applicable rules governing private conduct.

To be sure, certain delegations of legislative power have been found constitutional. But those delegations are narrow and limited. The Nevada Supreme Court has held that “the Legislature may delegate the power to determine the facts or state of things upon which the law makes its own operations depend, but the legislature may not delegate its power to legislate.”

The Legislature may also direct the Executive to “fill up the details” of a statutory framework with regulations and executive orders. But the Legislature must provide “intelligible principles,” or what the Nevada Supreme Court calls “suitable standards,” to cabin the Executive’s authority and discretion. Any delegating statute must set forth detailed and precise standards to guide the Executive’s use of power. Suitable standards enable the courts – and the public – to determine whether the Executive is following the Legislature’s guidance or simply acting arbitrarily.

These constitutional precedents still apply in these unprecedented times. Indeed, it is in “emergencies” when liberty is most at risk.

NRS 414.070(7) violates the nondelegation doctrine. The statute confers on the Executive the unbridled power “[t]o perform and exercise such … functions, powers and duties” as it unilaterally deems “necessary to promote and secure the safety and protection of the civilian population” whenever it proclaims a state of emergency. “To say that this provision confers broad discretion,” Justice Alito noted, “would be an understatement.”

As drafted, NRS 414.070(7) provides no outer limitation on the types of “functions, powers, or duties” the Executive may perform. The statute’s language is boundless; it ostensibly allows the Executive to legislate through mere proclamations the private conduct of individuals. As a result, the Executive presumes the authority to shut down businesses, limit occupancy, and require restaurant reservations. The Executive has unlimited power to exercise, except, apparently, at the gym.

This statute authorizes Executive actions that go far beyond factual investigations into, for example, whether any particular business has been the source of an outbreak. Instead, the Executive is authorized to make policy decisions about which businesses are “essential” or “nonessential” without any legislative standards or factors to apply.

The statute has no time limit on the state of emergency or any requirement to seek retroactive legislative approval of the Executive’s actions.

NRS 414.070(7) is essentially a blank check for the Executive to do anything and everything to “make Nevada safe.” That is perhaps an effective slogan but it is not exactly a “suitable standard” for constitutional purposes.

Nevada is not the only state where the pandemic has these unmasked constitutional problems. Courts elsewhere have recently found that similar statutes violate the nondelegation doctrine. In October, the Michigan Supreme Court ruled that its Emergency Powers of Governor Act was an unlawful delegation of legislative power under the Michigan Constitution.

The Executive’s recent mandates may be appropriate and necessary responses to the public health crisis. But no matter how expedient these restrictions may be, the Executive cannot singlehandedly decree rules governing private conduct. That is the function of the Legislature. Our Constitution demands that such directives be considered by legislators, passed by both legislative chambers, and signed into law.  Until then, Nevadans should make responsible choices, take precautions, and be courteous to their neighbors.

Nondelegation violations should not be a partisan issue. The dangers from overreaching Executive power should concern all Nevadans no matter who occupies the Governor’s Mansion. Those on the left and the right can easily imagine the mischief another Executive may bring under the overbroad delegation of NRS 414.070(7).

In the upcoming legislative session, our elected representatives should learn from the COVID experience. They should listen to health experts, economists, and Nevadans. They should also adhere to the state constitution. After a full and transparent debate, legislators should amend NRS 414.070(7) to enact suitable standards and meaningful limits on the permissible range of Executive actions during an emergency. At minimum, the new limits should include a temporal restriction with legislative renewal and approval of the Executive’s private conduct mandates. Without standards or limitations, the State may be subject to liability.

Some will say that such restrictions will handcuff the Executive’s ability to protect Nevadans. But the Framers recognized that the separation of powers protects Nevadans in times of celebration as well as calamity. We should not forget that the government’s powers are separate – not socially distanced – and there is no “pause” button on the Constitution.

Jordan T. Smith is a partner at Pisanelli Bice, PLLC. He previously served as deputy solicitor general of the State of Nevada. His practice focuses on complex commercial, constitutional, and appellate litigation. You can follow him on Twitter @NevadaAppellate.