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A sad irony for Governor Ducey after Uber's fatal crash

Following Uber’s fatal crash in Arizona, Governor Doug Ducey is attracting attention for what he did and did not do. This is not surprising; as I noted in 2016, Arizona's governor decided to embrace Uber’s vision, for better or for worse. This discussion, however, tends to elide the important question of his actual legal authority.

Governor Ducey seems to take a broad view of that authority. Relying on “the authority vested in me by the Constitution and laws of the State of Arizona,” he has issued two executive orders (in 2015 and 2018) directed at least in part to automated driving developers. And yesterday, he wrote to Uber that, “[i]n the best interests of the people of my state, I have directed the Arizona Department of Transportation to suspend Uber’s ability to test and operate autonomous vehicles on Arizona’s public roadways.” 

In general, governors have both the power and the responsibility to faithfully execute their states’ laws. Executive orders are one way by which governors carry out this responsibility. As the National Governors Association explains, “[t]he authority for governors to issue executive orders is found in state constitutions and statutes as well as case law, or is implied by the powers assigned to state chief executives.” In Arizona, the governor’s enumerated powers (among which is the power to “offer rewards for escaped insane persons, not exceeding five hundred dollars”) do not explicitly include the issuance of executive orders. (There are also other assorted devolved powers, like securing highway funds.) But according to Governor Ducey’s office (as reported in a 2016 survey by the Council of State Governments (CSG)), this authority is implied: The governor takes a “[b]road interpretation of gubernatorial authority” that empowers him to “make executive orders in all of [the listed] areas and situations as long as there is not a conflicting statute in place.”

The areas and situations identified by CSG principally cover public emergencies and governmental administration. Indeed, governors typically issue executive orders to “trigger emergency powers during natural disasters, energy crises, and other situations requiring immediate attention; create advisory, coordinating, study, or investigative committees or commissions; and address management and administrative issues such as regulatory reform, environmental impact, hiring freezes, discrimination, and intergovernmental coordination,” among others. The State of Arizona Research Library likewise explains that “Executive Orders are issued by the Governor of Arizona to establish boards or commissions or to authorize the performance of other functions that are appropriate to the executive authority of the Governor.” In other words, outside of public emergencies, executive orders are principally focused on the operation of government and therefore directed at actors within that government.

This focus is consistent with the use of executive orders merely to implement rather than to make law. “It is a basic tenet of our system of government that the governor, or executive, has only such powers as are conferred upon him by our constitution or by validly enacted statute. The law-making power is vested in the legislature. None of the branches of government may exercise powers which are granted to another branch. While the governor is charged with the duty of faithfully executing the laws, and must be accorded powers reasonably commensurate with such a broad responsibility, this is not a source from which the power to make legislative decisions can be created.” Litchfield Elementary Sch. Dist. No. 79 of Maricopa Cty. v. Babbitt, 125 Ariz. 215, 220 (Ariz. Ct. App. 1980) (citations omitted).

Arizona’s legislature has never enacted a law specific to automated driving. Indeed, the state has the distinction of being the first state to actually defeat automated driving legislation back in 2012. But I have argued that existing vehicle codes in most states can be reasonably interpreted as consistent with automated driving—and states from Washington to Florida have agreed. So too have many automated driving developers, including the companies that are testing in Arizona. (Indeed, these tests are actually outside the pilot programs envisioned by the 2015 executive order.)

This brings us to Governor Ducey’s actions, including his two executive orders and his letter to Uber. In general, the governor cannot permit something that statutory law prohibits, and he cannot prohibit something that statutory law permits. This has three important implications.

First, the governor’s executive orders must be premised on a good-faith conclusion that existing statutory law (including the state’s vehicle code) does not prohibit automated driving. (After all, if statutory law did prohibit automated driving, an executive order permitting it would clearly conflict.) Only then can the governor lawfully direct the officials under him to “take the necessary steps to support the testing and operation of fully autonomous vehicles on public roads within Arizona.”

Second, these executive orders at a minimum cannot impose restrictions or obligations that are inconsistent with those laws. The 2018 executive order states that testing or operation of unoccupied automated vehicles “shall be allowed” only if a person has “submitted a statement … acknowledging” that four conditions are satisfied. The conditions themselves are essentially clarifications of existing law. And yet it is striking that the requirement itself is implicitly directed at automated driving developers—actors that are outside rather than inside state government.

Third, the substance of the governor’s letter to Uber requires some foundation in law. As an initial matter, “[a]ll official acts of the governor, except approval of the laws, shall be attested by the secretary of state.” But more to the point, if permission to test automated vehicles is not the governor’s to give, then it may not be the governor’s to take away. And while Governor Ducey writes that he has “directed the Arizona Department of Transportation to suspend Uber’s ability to test and operate autonomous vehicles on Arizona’s public roadways,” he provides no explicit legal basis for that direction.

There is in fact a legal basis for preventing Uber from testing and operating its vehicles. Arizona’s vehicle code provides that the state's Department of Motor Vehicles “shall cancel, suspend, revoke or deny the registration of a vehicle that it determines is unsafe or unfit to be operated or that is not equipped as required by law and shall retrieve license plates and registration cards for these vehicles.” And the governor has suggested that Uber’s vehicles are unfit to be operated—or at least that Uber is unfit to operate them.

We thereby arrive at a sad irony. In 2016, as Uber was refusing to comply with California’s automated driving law, I advised the state’s Department of Motor Vehicles to revoke the registration of Uber’s vehicles. After the DMV did so, Governor Ducey tweeted that “This is what OVER-regulation looks like! #ditchcalifornia.” The very tool that he harshly criticized California for using is the one on which the lawful execution of his own decision may now depend.

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