Here in New York State (upstate, thankfully, not the city), we’re on lockdown as of tonight. All “non-essential” businesses are closed and the Governor has actually issued an order including a ban on “all non-solitary outside activity, like outdoor basketball games and other team sports.” On our street, neighbors were out on their porches last night talking to each other (without coming too close) and it’s hard to escape the feeling that the wheels are coming off of our society. Hospital beds are nearing full capacity even outside of the Big Apple. It’s getting pretty grim out there.
But are all of these orders even legal? Can the governor of a state simply shut down all activity in an emergency situation and restrict the free movement of citizens? Governor Larry Hogan has issued a similar order in Maryland and the Baltimore Sun took a look at that question yesterday. And it turns out that the answer is yes, at least for the most part, but only for limited periods of time under a declared state of emergency.
The orders straddle the line between the public and private good, pitting the financial health of some against the physical health of all. And because of their sweeping, intrusive impacts, they raise a simple question: Are they legal?
The answer, according to legal experts, is yes — largely because of the state of emergency declared by Hogan March 5.
President Donald Trump and other federal officials are making similar moves under a national emergency declaration.
But before we wash our hands of this subject, that answer comes with a number of qualifiers. At the Free Beacon, Kevin Daley examines the question and finds that some of these powers don’t really exist under the Constitution. But the courts have long been inclined to turn a blind eye to such issues in the interest of keeping our society intact during particularly grim times.
Professor James Hodge, a public health law specialist at Arizona State University, said lockdowns of the sort seen in France—where President Emmanuel Macron has mobilized 100,000 police officers to enforce a shelter in place order for 15 days—is likely to trip multiple constitutional wires.
“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,” Hodge told the Washington Free Beacon.
If the crisis worsens significantly, the courts may permit broad action, at least for a limited period of time. A judge might defer to the judgment of public health authorities, but the government would be required to show its interest is compelling and its intervention is both narrowly constructed and the least restrictive means of meeting the threat.
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 absent some indication that you’ve broken the law or pose a threat to society. Similarly, they aren’t empowered to shut down private businesses, providing the operation is engaging in the vending of legal goods and services.
But if the executive and legislative branches can convince the courts that the need is urgent and the threat to the continued survival of the republic is dire, judges will generally turn a blind eye to constitutional requirements and allow a more authoritarian state to exist. Of course, they’ll include stern warnings about how those powers will not be allowed to continue past the end of the state of emergency, but they’ll allow it. So what the judges are doing is giving an unofficial nod to powers that largely don’t really exist, but can be seized in the name of keeping the country going.
At least in New York, it certainly seems as of those conditions exist, so arguing with the lockdown orders would prove 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 that people were dying from COVID-19 at a rate of one per hour yesterday. Much of the initial information we were given about the novel coronavirus (when it was still mostly limited to China) turned out to be incorrect. It’s taking out younger people at a frightening rate, not just the elderly and those with compromised immune systems.
With all that in mind, this probably isn’t the time to be carping about restrictions on constitutional rights to free movement and the like. Even if orders like these aren’t technically within the powers of governors or the President, the courts are going to back them up and it appears that we’re going to need to take drastic actions if we’re to stop this plague from going into Full Captain Trips mode.