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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)

Law

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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Krieg Barrie

(Krieg Barrie)

Law

Library fines—gone with the wind?

Many libraries have stopped charging for overdue books

The antechamber of the Mesquite Library in Phoenix, Ariz., is full of natural light and potted palms. Sporting a ball cap, Valerie Jones strides through, but turns back to give her opinion on library fines. Would a library without overdue book fines help her? “Yes!” 

Jones has a 6-year-old son who checks out 20 to 30 books at a time. She encourages his appetite, but when it’s time to return the books, it’s impossible to find them all. Whatever she doesn’t return incurs a fine. The fines build up, her library account is blocked, and she can only afford to pay in installments. The result: Her son stops checking out books.

Starting in November, this will no longer be a problem. The “All Fines Forgiven” initiative at Phoenix Public Library branches such as Mesquite will remove daily fines for overdue books and forgive existing balances. Patrons still have to pay a replacement fee after 50 days, but if they return the book, the fee is waived.

Phoenix isn’t the first city to end library fines, but it is the biggest so far. About 200 other library systems in the United States have become fine-free. In January, the American Library Association passed a resolution encouraging all libraries to do so.

Eliminating fines evokes a mixed response from patrons. Some, like Jones, welcome the idea. Others, mostly older patrons, worry people will become irresponsible and stop returning books. (Nobody seems to anticipate personally becoming the problem.)

Phoenix is the county seat of Maricopa County, and the county library system, which went fine-free in May, reports no problems with book hoarders yet. Other libraries generally report that removing fines actually increases circulation. Their position: People recognize the value of a library, are responsible, and understand they are borrowing.

Phoenix Public Library spokeswoman Lee Franklin says fines disproportionately affect low-income households and those without books. She has seen parents who bring children to the library to read but tell them, “We can’t take that home.” She hopes removing a potential financial barrier will make books more accessible.

Yolanda J., who works at a Phoenix branch in a low-income area, agrees: Patrons approach her desk to ask what fines they owe. Often when they hear their balance, they turn around and leave. But patron Doyle Magouirk, who wears a gray beard, has a different perspective: When he goes overdue, he keeps the book until he accrues a large fine. When he gets his monthly paycheck, he pays his fines: “That’s how I donate to the library.” Right now he owes $11.50 and intends to pay before the fine is forgiven.

Carol Romanchuk is happy to see fines disappear because she’s always late, and the money doesn’t directly benefit the library: “I used to think it went toward new books, but then I learned it just went to the general fund, so what’s the point?”

Romanchuk is right. Phoenix Public Library currently collects about $200,000 a year for overdue books, money that goes into the city’s general fund. The Maricopa County library system, funded by property taxes, already has a program to help municipal libraries. When Phoenix joins the fine-free movement, the county will supply the city’s libraries an additional $170,000. So, since money in the city general fund may not return to the library system, the new policy might help it financially.

Still, the next time politicians propose raising taxes to help libraries, voters will know they’ve already given up one revenue source.

—Victoria Johnson is a graduate of the World Journalism Institute mid-career course

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Hannah Strege (right) stands next to U.S. Rep. Charles Boustany at a news conference in 2006. (Chip Somodevilla/Getty Images)

Law

A chance at life

Embryo adoptions are increasingly popular thanks in part to a government grant created by an unlikely senator

The first “snowflake baby” was born in 1998. Hannah Strege, conceived in a petri dish and placed into frozen storage for two years, had been implanted as an embryo into the womb of Marlene Strege. The two were not biologically related, but Marlene had chosen to adopt this embryo with the help of Nightlight Christian Adoptions, a group that coined the term “snowflake babies” to describe the more than 100,000 frozen embryos then stored at fertility clinics across the United States. American couples had created the embryos with the help of in vitro fertilization: Those parents would typically choose to implant, discard, or donate the embryos to stem cell research.

When Hannah was born, embryonic stem cell research was a hot topic in Washington. Advocates anticipated cures for cancer and Alzheimer’s, but opponents argued that if life begins at conception, research that destroys human embryos should be off limits. Debate raged in Congress, and in August 2001 President George W. Bush said federally funded researchers could use existing embryonic stem cell lines but not new ones. The 9/11 attacks soon tore the country’s focus away from stem cell research.

In December 2001, Pennsylvania Sen. Arlen Specter, a pro-abortion Republican at the time, created a $1 million grant to raise public awareness of embryo adoption. He added the funding to a Department of Health and Human Services (HHS) spending bill at the last minute, after months of loudly supporting research using embryos. “He was an unlikely person to be adding [the grant],” former Nightlight President Ron Stoddart recalled. But pro-life groups were arguing more people would donate their embryos to adoption if they only knew they could. Specter told the Associated Press the grant would be a test: “Let us try to find people who will adopt embryos and take the necessary steps.” Stoddart said he suspected that if interested families did not come forward, Specter would have kept pushing for embryonic stem cell research. 

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