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The real reason why SC Gov. Henry McMaster won't issue a coronavirus stay-at-home order

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John A. Carlos II (copy)

Gov. Henry McMaster gives an update on the state’s response to the COVID-19 outbreak with state Education Superintendent Molly Spearman (left) and state epidemiologist Linda Bell at the state emergency operation center on March 15 in West Columbia. John A. Carlos II/Special to The Post & Courier

Gov. Henry McMaster, a former U.S. attorney for South Carolina and two-term state attorney general, has developed a reputation as a bit of a "legal Boy Scout."

While presiding over the state Senate as lieutenant governor, he angered Gov. Nikki Haley, an ally, in 2016 when he issued a parliamentary ruling that killed a key provision in an ethics bill that she — and he — backed.

But a rule is a rule to McMaster.

And it's those stubborn legal views that make South Carolina the last state east of the Mississippi River without a stay-at-home order amid the rapidly spreading coronavirus outbreak.

McMaster was asked 12 times during a briefing with reporters on Friday about why he has not issued the order enacted in about 40 other states.

He mentioned all the executive orders taken since the state's first reported coronavirus case that restrict what South Carolinians can do during the pandemic. They can't eat in a restaurant, shop at a department store, get a hair cut, use a public beach or river access, attend classes in person or visit prisoners.

McMaster stressed that he and health officials have urged people to stay home during his media briefings, noting the state has put the message on highway signs and sent it out in an emergency alert to cell phones.

"The measures that we have taken are both voluntary and mandatory contemplate staying at home," he said.

Plus, he needs to make a decision that's best for South Carolina, now with over 1,700 cases and 34 deaths.

"Our state is not like everyone else's state," the governor said. "Every state is different. They have different economies. They have different resources. They have different medical facilities. We are taking a deliberate approach to be as aggressive as we possibly can at the right time. And we're following the science and data to do that." 

What he didn't say is that he has legal concerns with a stay-at-home order.

He felt legally comfortable to issue 13 executive orders that allow police to break up gatherings of three or more people, use the National Guard to build auxiliary medical units and bar New Yorkers from getting a hotel room.

“The only thing the governor has not done is utter the magic words," McMaster's Chief of Staff Trey Walker told Palmetto Politics. "He has done the things he has legal authority to do."

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Walker added, "Yes, he could go out and say, 'I order you by criminal penalty to stay home.' But the problem is he does not believe that any governor or any public official has the constitutional authority to force someone to stay inside their home against their will." 

Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases who has been a fixture at White House coronavirus media briefings, thinks all states should have stay-at-home orders to slow the spread of COVID-19.

"If you look at what's going on in the country, I just don't understand why we're not doing that," Fauci told CNN last week. "We really should be."

McMaster said he makes decisions based on recommendations from professionals "in our state whom know, whom we rely on and whom we trust. And when it is time to issue any order, that is when we issue those orders."

His office said leaders of the state Department of Health and Environmental Control have not called for a stay-at-home order, and state epidemiologist Linda Bell and Nicholas Davidson, DHEC's acting public health director, have not spoken in favor of one during news briefings.

“It’s important that we evaluate things on a day-by-day, case-by-case scenario," Davidson said when asked about an order. "There’s not one particular thing that would make us say that.”

There are other considerations in how McMaster reacts to the outbreak, especially with nearly 100,000 South Carolinians seeking unemployment benefits over the last weeks of March.

"When you have folks who are going to have trouble paying bills and that are going to have trouble feeding their families, you have to balance keeping the economy going as long as you can with protecting the public," Walker said.

But the governor will listen to his team of public health officials if they recommend an order, Walker said. He will just need to see the right legal path.

McMaster left open the possibility Friday.

"It could be where we end up," he said. "I believe that we are taking the precise, deliberate approach according to our plan to keep the people safe."


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