Here in New Hampshire, we’re on a modified lockdown. All “scheduled gatherings of 50 or more people for social, spiritual, and recreational activities…” are prohibited. This prohibition does not include businesses. The Governor has issued a five-part order.
On our street, there is no foot traffic, few automobiles, and no social interaction. It’s hard to escape the feeling the wheels are coming off of our society. The local hospital beds are not full. Physicians’ offices are calling to reschedule non-critical visits. It’s pretty grim. Is it necessary?
New Hampshire is not alone in its reaction. But are all of these orders even legal? Can the governor simply shut down all activities in an emergency situation? Does he have the authority to restrict the free movement of citizens? Does the term freedom of assembly ring bells with anyone?
Analysis
The Baltimore Sun took a look at that question yesterday. The Sun’s conclusion is yes. At least for the most part but only for limited periods of time and as long as the jurisdiction operates under a declared state of emergency that the executive decides to declare.
Clearly, these orders straddle the line between the public and private good. They pit the financial health of some against the physical health of others. Because of their sweeping, intrusive impacts, they raise the simple question: Are they legal? The answer, according to some in the legal community, is conditionally, yes. President Trump and other federal officials are making similar moves under a national emergency declaration.
But before shutting down investigation of these restrictions on the people by the government let’s note the “yes” answer comes with a number of qualifiers. Kevin Daley of the Free Beacon examines the question. He finds some of these powers don’t really exist under the Constitution.
Caveats
Cue the music. The plot thickens. But the courts have long been inclined to turn a blind eye to such issues. They are progressive and have a bias. They profess to operate in the interest of “keeping our society intact” during particularly grim times, emphasis added.
Professor James Hodge is a public health law specialist at Arizona State University. His opinion is lockdowns of the sort seen in France likely to trip multiple constitutional wires in America. In France President Macron has mobilized 100,000 police officers to enforce a shelter in place order for 15 days.
Hodge told the Washington Free Beacon, “We’ve seen lockdowns in China and Italy. The capacity to pull off similar efforts in the United States at any level of government is sketchy at best because of rights to travel, due process and other specific constitutional norms…”
If the crisis worsens significantly, the courts may permit broad action; though likely only for limited periods of time. A judge may defer to the judgment of public health authorities. The government should be required to show its interest is compelling. It is likely it would be required to show its intervention is narrowly constructed. The government is likely to be required to have to show the measures taken are the least restrictive means of meeting the threat.
The ends justify the means
This appears to be more a case of practicality than legality. The government isn’t supposed to be able to flatly restrict your free movement. At least, not absent some indication that you’ve broken the law or pose a threat to society. The government does not have the power to shut down private businesses. That would be a taking. This assumes the business is engaging in the vending of legal goods and services.
What is currently going on is the executive branch has convinced the courts that the need is urgent and the threat to the continued survival of the republic is dire. You see judges put their pants on one leg at a time too. They too are subject to the same panic the rest of us are. Judges are turning a blind eye to constitutional requirements. They are allowing a more authoritarian state to exist.
They will mutter about how those powers will not be allowed to continue past the end of the state of emergency… but they are allowing it now. There seems little reason to assume they are going to change their minds any time soon. So what the judges are doing is giving an official nod to powers that largely don’t really exist. Now the question is: Will the powers the government seizes, be held in perpetuity… in the name of keeping the country going?
Those who trade freedom for security
In New York, it certainly seems as of those conditions exist. Arguing with the lockdown orders there as here is proving pointless. If you haven’t read Allahpundit’s update on just how bad things are in New York City, take a moment to do so. They’re already almost out of hospital beds and ventilators, with more patients showing up by the hour.
The New York Post is reporting people were dying from COVID-19 at a rate of one per hour yesterday. Much of the initial information about the coronavirus turns out to be incorrect. It seems to be taking out younger people, not just the elderly and those with compromised immune systems.
With that said, this may not be the optimal time to be carping about restrictions on constitutional rights to free movement. Even if orders like these aren’t within the powers of governors or the President, the courts are going to back them up. We are currently ignoring or not promulgating information now publicly available about cures for the virus. The result is it appears still need to take drastic actions to limit personal freedom. Are these lockdown orders legal and what are we giving up for them?