Should Governor Burgum Issue a Stay at Home Order?

Governor Doug Burgum holds a press conference announcing the closure of all K-12 schools in North Dakota. (Photo via screenshot.)

In response to the spread of COVID-19 (also known as the Coronavirus), on March 28th, State Health Officer Mylynn Tufte issued a Confinement Order to those “traveling back to North Dakota from all international locations and states in the U.S. classified as having widespread disease by the Centers for Disease Control and Prevention.” Those classified by the U.S. Department of Homeland Security as “Essential Critical Infrastructure Workers” are exempt.

In short, the Confinement Order requires:

“All subject persons… to quarantine immediately upon reentry to the State of North Dakota and for a period of fourteen days. The place of confinement is the subject person’s place of residence.”

On the surface, many individuals won’t question the order. The Health Department is, after all, simply doing their best to “flatten the curve”.

Yet, has anyone considered how impossible it is to effectively enforce such an order? Do you really think the State Health Officer knows the names and addresses of each person she’s ordered quarantined? Not a chance. No, she’s given in to what Judge Andrew Napolitano calls the “totalitarian temptation”— which is giving in to the temptation to show that she can do “something”.

Believing government needs to do even more, some North Dakotans are now calling on Governor Doug Burgum — via petition — to issue a shelter-in-lace order for the entire state. As you can see here, our state is 1 of 8 who’ve not yet taken this step. The Executive Orders already in place apparently aren’t enough for those signing the petition.

While the online petition was started three days ago, it has just 4,000 signatures. And as Governor Burgum himself noted today, we don’t even know how many of those are North Dakotans. In other words, thus far, it’s not exactly a tidal wave of support for forcing us all to stay home.

Like it or not, the majority of us probably can’t tolerate being cooped up in our homes for the long haul. We just can’t. The economics alone are already staggering for individuals, families, states, and our country. If this all continues, the economic fallout could be devastating. And a shelter-in-place order would only contribute to that.

While many questions could be asked in relation to a shelter-in-place order, let’s consider two.

  1. Is it necessary?
  2. Is it legal?

Is it necessary?

As of this writing, just 3.1% of COVID-19 tests administered in North Dakota have come back positive (225 of 7,213). The death rate is 1.3% (3 deaths out of 225 positive tests).

When we consider the data related to “new cases” on the Trending Curve, the line closely resembles much of North Dakota’s landscape— it’s pretty well flat. You can see today’s chart from the North Dakota Department of Health below.

In other words, at this point, we don’t have the problem of exponential growth that some other parts of the world have experienced.

And so, we move to our next question.

Is it legal?

This is an area of significant disagreement. Does Governor Burgum have the authority to utilize the power of the pen (i.e. Executive Order) to decree that all North Dakotans stay home? I’d argue that he doesn’t.

Let’s consider Article I of the North Dakota State Constitution— otherwise known as the “Declaration of Rights”. By way of example, how could the following rights not be violated by a shelter-in-place order?

  • The “free exercise and enjoyment of religious profession and worship”. (Section 3)
  • The “right, in a peaceable manner, to assemble together”. (Section 5)
  • The right “to obtain employment wherever possible” and to enjoy “employment already obtained”. (Section 7)
  • “No person shall be… deprived of life, liberty or property without due process of law.” (Section 12)

And lest you think that the governor’s emergency powers laid out in Section 37-17.1 of the North Dakota Century Code are somehow an exemption to these things, consider these additional statements from the Declaration of Rights:

  • “To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.” (Section 20)
  • “The provisions of this constitution are mandatory and prohibitory unless, by express words, they are declared to be otherwise.” (Section 24)

Make no mistake about it, the constitutional protections afforded North Dakotans by our state’s founding document are — as they should be — significant.

Now, please, don’t misinterpret my support for protecting the rights of the citizenry as some sort of opposition to taking COVID-19 seriously. It’s not. I just don’t believe usurpation of power, via a shelter-in-place order, is the answer.

What is the answer?

Is there a simple solution to stopping the spread of COVID-19? At this point, it doesn’t seem so. But individual responsibility is paramount. As I wrote last month, government cannot stop the Coronavirus from spreading. And people should stop pretending that it can.

If we don’t want to risk getting the virus, then we should stay home and distance ourselves from others. If we choose to leave home, then that decision carries with it the risk of infection.

Is an acknowledgement of this reality heartless? I don’t think so. But if it is, then what does that say about a society that tolerates tens of millions of illnesses, hundreds of thousands of hospitalizations, and tens of thousands of deaths resulting from the flu?

Now, before someone loses their mind, I’m not saying that COVID-19 is the flu. It’s not. But how many deaths are acceptable? Is it okay to call for a shelter-in-place for the one and not the other?

We’d all love to live in a perfectly sanitary society. One in which leaving our homes brings no risk of disease or death. Unfortunately, that isn’t possible. It wasn’t before, it’s not now, and it won’t be in the future.

It’s time to stop looking to the government for answers. Protect yourselves and let’s get back to work.

***Please take our poll on the Home Page. Let us know if you believe Governor Burgum should issue an order to stay at home.













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About T. Arthur Mason 878 Articles
T. Arthur Mason is a native North Dakotan who has spent nearly all of his life in the Peace Garden State. As the third of four children in Western North Dakota, Mason grew to appreciate family and the outdoors. Some of his fondest memories are annual deer hunts with family and friends. In his early teenage years, faith became a central part of T. Arthur Mason's life. He and the majority of his family attend church together on a weekly basis and find this a fulfilling aspect of their lives. Through the influence of his father, T. Arthur Mason became intrigued with politics. As a boy, he attended political events with his father and enjoyed the friendships that resulted as a byproduct of those political associations. As Mason grew older, he became convinced that the quote often attributed to Thomas Jefferson was true, "That government is best which governs least." Today, T. Arthur Mason enjoys time with his wife and children, an occasional hunt, and an increasingly active life on the political scene. This blog is the fulfillment of a dream to design a web site in the realm of politics and to advocate for the principles of Liberty and constitutionally limited government. On behalf of all those that contribute to The Minuteman, we hope you enjoy your time on the site and will share the message with others.