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Notebook Law

Liberties in tension

A San Francisco Police Department vehicle is visible patrolling during a shelter in place order in San Francisco, California, March 23, 2020. (Smith Collection/Gado/Getty Images)


Liberties in tension

Emergency declarations test the limits of constitutional rights in the United States

As the United States continues to battle the coronavirus, Americans in 41 states are under orders to stay home. Every state and the federal government have declared an emergency, and enforcement efforts are escalating.

Four small towns in south Texas, for example, have announced police patrols and checkpoints. Edcouch city manager Victor De La Cruz said officers would cite those who cannot provide written documentation that they are an “essential employee.” In one instance Edcouch police escorted a citizen who was picking up prescriptions to ensure that he returned home immediately after the errand. 

The nation’s state governors have issued over 760 executive orders pertaining to the coronavirus. Those orders, limiting citizens’ movements and ability to meet together and conduct business, raise a significant legal question: What are the constitutional limits of governmental powers during an emergency?

In Washington state, Gov. Jay Inslee last Thursday extended a stay-at-home order to May 4. Washington statute permits the governor to proclaim a state of emergency without consulting the Legislature for up to 30 days. During an emergency, he may impose a curfew, suspend state laws, and ban gatherings in open spaces provided the restrictions do not “conflict with the rights, under the First Amendment, of freedom of speech or of the people to peaceably assemble.”

“It’s very clear that state governors have, as a matter of federal constitutional law, extraordinarily broad authority,” said Joel Ard, an attorney based in Washington state. The Bill of Rights has never been interpreted to be absolute in its protections, he explained: “It has always been understood that state governments have the authority to quarantine to protect public health.”

However, Tony McDonald, an attorney in Austin, Texas, is concerned about the long-term precedent the latest executive orders may set. He says that prohibitions on the suspension of laws—a common feature of many state constitutions—are at the core of our constitutional order: “Restrictions on the king’s power and authority to suspend laws were the very first element of the English Bill of Rights from the 1600s.”

Dozens of governors and the Trump administration waived various laws in March. New waivers fast-tracked the licensing process for medical professionals and allowed retired healthcare professionals or medical students to begin working. Others permitted restaurant delivery services to offer alcohol or eased trucking regulations.

U.S. officials are also eyeing surveillance techniques in the coronavirus fight: The Washington Post reported that Google, Facebook, and other tech companies are in talks with the federal government about sharing users’ anonymized, aggregated mobile phone location data with federal officials. Such information, which Google and other data analysts have already begun to publish, reveal to what extent Americans are abiding by stay-at-home orders.

Public restrictions are not new in the United States. During the 1918-1920 influenza pandemic that killed half a million Americans, municipalities removed communal drinking cups in public spaces, closed dance halls and salons, and sometimes quarantined the households of the sick.

Nancy Bristow, author of American Pandemic, said that officials during that time didn’t restrict the movement of healthy citizens. “But public gatherings and events were frequently prohibited, and many public spaces were closed, such as schools, bars, and restaurants.”

Consumed with the war effort and not wanting to cause alarm, President Woodrow Wilson never publicly mentioned the pandemic, and Congress passed no legislation addressing it. 

Today, a dirty secret of U.S. emergency powers is their longevity: Thirty-one national emergency declarations continue to be renewed annually, including declarations regarding the 1979 Iran hostage crisis and the 9/11 terrorist attacks.  

But the courts would likely overrule an emergency order that restricts American liberties indefinitely, said Ard: “It almost certainly does have to be exercised in a way that’s rationally related to the problem they perceive and time-limited.”

Attorneys say that a growing number of lawsuits, including First Amendment suits in at least five states, could soon become a deluge.

McDonald is unsure they will meet success. “Courts have proven throughout history that they are unwilling to confront the executive in times of public emergency,” he said.

“Is this situation unlawful? I’m not sure.”


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  • AlanE
    Posted: Mon, 04/06/2020 04:42 pm

    I believe in being a good citizen. I believe in heeding directions from the state in time of emergency. I have been sheltering in place as directed. I wore a facial covering when I went out to get some needed groceries this morning. That said, various local, state, and national governments are on the verge of losing control of this situation.

    The University of Washington models, which already assumed the social distancing we were all under orders to do, have undergone a drastic reduction in forecasted deaths from the coronavirus. They didn't update the data and projections at all for several days, and now the forecasts show enormously reduced death and hospital bed usage rates from the next-most-recent update on April 1.

    Thus far, the government has avoided any attempts at using random sample testing to get us a workable figure of how many people are actually infected. Without those numbers, so much of what we're told to believe is just rank speculation. Yes, we can count deaths, but rates are simply speculative.

    In short, the demands for sheltering-in-place are being maintained in the absence of gatherable data, and where data does exist it appears the projections originally given us were exaggerated (whether purposely or not). 

    Meanwhile, millions of people in this country alone have lost jobs. People will die, whether directly or indirectly, from massive unemployment as well.

    It doesn't look good for those who want to continue on the present course. By all means, let's do what we can to continue to protect the most vulnerable, but it's time to start planning how we get a very large number of people back to work. I'm not suggesting we pull the trigger on the process of returning idled people to work today, but it will be show or fold time very soon for the government officials who want to continue sheltering-in-place policies. The good faith of the people is running thin, best not to find out where the breaking point lies.

  •  CaptTee's picture
    Posted: Tue, 04/07/2020 09:40 pm

    I agree.

    There has been no substantial reporting comparing the Wuhan Flu cases/hospitalizations/deaths with the seasonl flus of the last decade.

    Are the deaths from regular season flu season down because the suseptible people were killed by the new Wuhn Flu instead? 

    Is the really an emergency any more than the regular flu season? Should every flu season be declared a national emergency from now on?

  • My Two Cents
    Posted: Tue, 04/07/2020 12:23 pm

    There is a fine line between a national emergency and a police state. I feel we've stepped way across. I'm waiting for the ration cards to come. The social isolation is negatively affecting a much larger group of people. Small business owners who have finally turned a profit after 5 years of building a client base. Those mentally and emotionally fragile people who entertain thoughts of self-harm, worthlessness and despair. Elderly citizens who are cut off from visits from family, and seeing friends in the dining hall. Suicide rates are up. Children who were safe at school from dysfunctional families, are "home" with parents who are absent, abusive, neglectful, or unable or unwilling to ensure the child is doing his school work. I predict, rather pessimistically, that at this point we will never get all of our freedoms back. And what will the next national emergency? Climate change? Gun control? The government has stolen responsibility that is NOT theirs and forced us to depend on them. I don't think they will give up any power or control readily.