Are These Stay-at-Home Orders Constitutional? Experts Say Yes for the Most Part

There have been lawsuits filed and there have been a lot of complaints, mainly from the right, but concerns as well from the left about the constitutionality of the stay-at-home orders.  But most legal experts believe that government has broad authority in emergencies to issue emergency orders.

In a ruling out of Michigan yesterday, the court ruled that Governor Whitmer’s stay-at-home order in response to the coronavirus outbreak does not violate residents’ constitutional rights, denying a motion for a preliminary injunction.

A group of five Michigan residents who filed a lawsuit against the governor claimed that “the quarantine measures infringed on their constitutional rights to procedural and substantive due process.”

“Although the Court is painfully aware of the difficulties of living under the restrictions of these executive orders, those difficulties are temporary, while to those who contract the virus and cannot recover (and to their family members and friends), it is all too permanent,” Court of Claims Judge Christopher M. Murray wrote.

Elizabeth Goitein, a director of the liberty and national security program at the New York University School of Law’s Brennan Center for Justice, told the NY Times back in March, “The state and local governments have extraordinarily broad powers to handle public health crises — much broader than the federal government has…  The federal government has more money, but state and local officials have police powers, essentially their authority to maintain public health and safety.”

Lawsuits are unlikely to be successful unless they are challenging “a truly egregious practice,” according to James Hodge, law professor at Arizona State University, who spoke with Bloomberg Law.

“The idea that you’re going to walk into court and object vehemently and successfully against known, proven public health social distancing measures that are being employed currently is not a winner,” he said.

In California, the governor issued his March 4 executive order proclaiming a state of emergency based on Government Code sections 8567, 8627, and 8665.  Those give the governor broad authority to impose restrictions like curfews and stay-at-home orders during times of threat to public safety.

Both the state and federal courts have upheld the right to things like curfews and other restrictions on freedom during times of riots and other threats to public safety.

The Vanguard spoke with attorney Joseph Tully, who is a critic of government power, but agrees that at the present time government has the right to issue such orders and the question is a matter for doctors and scientists about whether the COVID-19 threat meets the threshold.

“There are emergency powers granted to public health organizations,” Tully said.  “It’s not like these orders are just made up by people.  That shouldn’t be the debate.

“They’re basically valid orders,” he said.  He noted that you might argue over whether they are warranted or unwarranted or overreaching, “That’s where the debate should be.  But whether or not a health official can make such an order isn’t as much debatable.”

He added, “Fundamentally, all government action is subject to a rational basis analysis.  Government can pass laws but there does have to be some basis in rationality.”

The question of whether the laws are overreaching, however, is not one he wants to answer.

“Whether or not the laws are overreaching is one I don’t want to answer because it really should be grounded in science—I’m not a doctor, if COVID-19 is the next plague, then certainly these orders are valid and necessary and we need to enforce them,” he said.

On the other hand, “if it turns out it’s not as deadly as we thought, then there will be an argument that these orders are overreaching.”

In his view, “it boils down to (a) medical question.”

The legal experts seem to agree here that the government has the authority to impose these orders, but judges will have to balance individual civil liberties and constitutional rights against the need to protect public health.

Lawrence Gostin, a law professor at Georgetown University, for example, wrote the State Emergency Health Powers Act, a model law that many states have adopted.

He told NPR, “There’s no question that if you’ve been exposed to the virus, but not showing currently symptoms, that there could be a quarantine order and that it could be enforced by law.”

The problem gets into how far that can go.

As he put it, “once you start getting into what might colloquially be called an en masse quarantine or a lockdown where government will actually aggressively enforce it, then you’re getting into territory that implicates the most fundamental constitutional rights and the right to freedom of movement, the right to freedom of travel.”

The ACLU in March put out a statement on President Trump’s invocation of emergency powers.

Hina Shamsi, director of the ACLU’s National Security Project, said, “Use of emergency powers in this pandemic can be legitimate for measures grounded in science and public health and when consistent with the need to protect the health, safety, and civil liberties of us all.”

Shamsi added, however, “At the same time, history teaches that our government is most prone to committing abuses in times of crisis, and we must ensure that broad presidential powers are not misused beyond legitimate needs.”

Thus far the ACLU has not filed any suits against states with stay-at-home orders, but they did indicate they “will be watching closely to make sure any use of emergency powers in response to the pandemic is grounded in science and public health, not politics or discrimination.”

For Joseph Tully, “The law on its face is reasonable, based on the assumptions that were going around at the time when the laws were enacted.”  But that depends on the view of the experts making these decisions.

As so many things in law, “it boils down to the battle of the experts, ultimately,” Tully said.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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35 Comments

  1. Keith Olsen

    Gov. Newsom is starting to feel the heat.  Yesterday he first closed down all state beaches but because of the backlash he later changed it to just Orange County beaches.  The Orange County Sheriff has already stated he will not enforce the directive.

    Yesterday the Michigan House of Representatives declined to extend Gov.  Whitmer’s state of emergency another 28 days, and instead voted on sue her.

    It’s all starting to crumble.

        1. Keith Olsen

          Here you go, Newsom already backing down to pressure from the protesters:

          The governor avoided addressing the controversy in prepared remarks at his press conference Friday, but seemed to be speaking with critics in mind when he said, “I just want people to know that were getting close to making really meaningful augmentations to that stay-at-home order.”
          In terms of a more specific timeline for those “augmentations,” Newsom said that in “days, not weeks…we will be making some announcements.”

          https://deadline.com/2020/05/public-protests-lawsuits-beach-closures-california-governor-gavin-newsom-says-it-doesnt-surprise-me-1202923685/

          1. David Greenwald

            And of lot of those people will get sick and some may die. People’s impatience is a growing problem and if they open too soon, a lot more people are going to die because it. BTW, the people protesting are in the minority, most people support the stay at home orders.

          1. David Greenwald

            If you spike the number of cases now, you probably prolong the shutdown and make the economy worse.

    1. David Greenwald

      The Orange County sheriff better be careful by the way, they are in enough hot water as it is. The last thing they want to do is have the AG have to come in after the evidence mess that they created.

      1. Keith Olsen

        What would you have the sheriff do, arrest, cite or jail beach goers when CA is already letting hardened criminals go free?

        It’s not just the OC sheriff either, several mayors and city councils are fighting Newsom’s orders.

        1. Tia Will

          What would you have the sheriff do”

          I would have the sheriff do as David suggested with the parking lot closure and blockage of vehicular traffic plus one more step. I would have everyone in violation of the order issued a citation.

          Of course, there is also something I would have the governor do. I would have advised him to allow beach usage in the same way we use our green belts and parks. Namely ok to use while maintaining masks and social distancing. If people are willing to do that, I think letting them follow those rules would offer more consistency while also maintaining reasonable safety.

           

    2. David Greenwald

      From the Hill: “A Michigan court on Wednesday ruled that Gov. Gretchen Whitmer’s (D) stringent stay-at-home order in response to the coronavirus outbreak does not violate residents’ constitutional rights, denying a motion for a preliminary injunction.”

      Eli Savit – DA candidate in Ann Arbour tweeted, “The GOP’s attempts to challenge @GovWhitmer’s emergency powers in court will fail. This is not a tough (or complicated) legal question. But by bringing this lawsuit, the GOP is fueling uncertainty at a time we need certainty most. It’s irresponsible.”

  2. Ron Glick

    Staying at home is working locally in the effort to arrest the spread of the virus. According to the county dashboard Davis hasn’t had a confirmed case in four days and the total number of cases in the county has been declining over time. Yolo County peaked on April 6 with 17 cases  that day. Yesterday there were no new cases reported and no more than two cases a day since April 26 county wide. We need to stay the course.

    1. David Greenwald

      Downtown starting to look a lot less like a ghost town and closer to normal – people, cars parked on the streets, there is almost a bustle now.  Things ere really dead in late March

      1. Bill Marshall

        Yep… but you did not mention signs of ‘social distancing’, nor ‘masks’… will assume those are implied…

        If not, we’ll still need to look towards ‘monitoring’ infection/morbidity/mortality rates…

        We need to progress, but in a measured way, IMNSHO…

    2. Keith Olsen

      According to the county dashboard Davis hasn’t had a confirmed case in four days and the total number of cases in the county has been declining over time. Yolo County peaked on April 6 with 17 cases  that day. Yesterday there were no new cases reported and no more than two cases a day since April 26 county wide.

      This makes a great point that maybe it’s time for Yolo County to reopen.

        1. David Greenwald

          Start with the ability to test – otherwise we are flying blind.  We are probably going to see multiple resurgence because of that.

  3. Bill Marshall

    Reading the lead article in the Bee today… marked diversity of infection/death rates between rural/urban, density of populations (duh!).

    One of the criteria of whether something is based on sound facts/reasoning… or, is it capricious/arbitrary…

    Early on, with little testing, we had little data… so, I’d argue that it was reasonable to ‘shut the valves’, like stay at home ‘orders’ [sidebar, is there one, even one, recorded arrest, citation, prosecution, incarceration for an individual personally violating that?]… now, as the Bee article shows, there is a lot more data… and maybe some valves, in some areas should be loosened, gradually, with monitoring for adverse changes in infection/mortality rates… not to do so, would lean to the ‘capricious/arbitrary’ side of the ledger…

    Opening all valves, wide open, at this point, seems to be stupid and dangerous… and capricious and arbitrary…

    Not knowing Michigan, but given the foregoing, the Governor keeping all valves closed, and the Legislature apparently wanting to open all valves… well, no ‘heroes’ in sight… both positions are apparently capricious and arbitrary…

    1. Tia Will

      Keith

      I also am tracking these protests with interest. I have no problem with car protests and protests in open air venues in which masks and social distancing are used. I have a lot of problems with protests that do not include masks and distancing. What these individuals are doing, besides expressing their 1A rights is choosing to put many others at risk as well.

      We have seen from large gatherings such as funerals and church services that there is an upsurge in cases of individuals at these events. While I have no problem with these individuals risking their own health, coronavirus is unique in having asymptomatic and presymptomatic spread which is unusual for viruses. Thus they are likely to spread the virus to those who made no such choice to engage in group activities. If each person spreads the virus to just 3 others, you now have a surge. If the protester then goes to the hospital there is the potential to spread the disease to hospital workers, & their families. Surely no one would be ok with the knowledge they, through their 1A activity had killed someone else. And yet that is the chance they refuse to acknowledge. I find this a profoundly self-centered and selfish attitude.

      1. Keith Olsen

        Tia, look at the officers in the pics of the Sacramento protest on the link I provided.

        Are they wearing masks?

        Another thing that’s funny, if these protesters all wore masks I think you know they would be ridiculed for doing so.

        1. Bill Marshall

          if these … all wore masks I think you know they would be ridiculed for doing so.

          You mean, Keith, like Trump, Pence, other admin folk?  Or just Democraps? Or REAL NPP folk?

          I’ll admit, I don’t do social distancing or masks, with my girlfriend of 45 years… we’ve been within 0 inches and no masks (too ‘kinky’)… don’t intend to change…

        2. Tia Will

          Keith

          So the Sacramento police are doing the wrong thing. Is that any justification for what the protestors are doing? If you truly believe in individual responsibility, both groups are responsible for their own actions, and both groups are acting irresponsibly in my opinion. And to your last point, are they not brave enough to take some “ridicule” for potentially saving lives?

      2. Keith Olsen

        They definitely aren’t in Orange County

        The article is about the protest at the state capitol, so um yeah, you’re right.

        What’s your point?

         

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