Epidemics

Can the Government Just Close My Favorite Bar?

|The Volokh Conspiracy |

Thankfully, epidemics are no longer a routine feature of American life. The long struggle of learning how diseases worked, improving public health, and developing medical countermeasures has separated us from what was once taken to be a basic part of the human condition. Perhaps we are returning to an age in which major public health crises are not entirely unusual, but we are certainly out of practice in facing a threat like COVID-19.

Perhaps we can chalk up some of the reaction to our current situation to unfamiliarity. Despite the warning to change social norms and engage in social distancing, the president continues to gather with his task force in front of a single microphone to offer public updates on administration efforts to fight the disease and young adults continue to pack themselves into nightclubs and bars.

We are also seeing unfamiliar exertions of government power. Wall Street Journal opinion writer Matthew Hennessey tweeted,

 

I regret to inform you that we have always lived in a country in which political officials can order private businesses closed.

A key constitutional foundation of the American system of federal powers is that the national government is one of enumerated powers specified in the text of the written Constitution but that state governments are ones of general jurisdiction which hold the residual of public power, lacking only the exceptions that have been specifically carved out by written constitutions. Traditionally, this doctrine was known as the "police power," which was conventionally understood to include the power of the state to make all necessary laws to protect the welfare, safety, morals and health of the community.

This general background of police powers underwrites myriad routine restrictions that state and local governments put on social life. It is what allows local governments to authorize health inspectors to examine the kitchens of restaurants and order them to close if they discover problems. It is what allows fire marshals to limit the number of people who can occupy a public venue. It is what allows police officers to arrest people for urinating in the street. It is what allows government officials to prevent you from just accumulating mounds of garbage in the backyard of your suburban home. It is what allows government officials to tell you that you cannot keep a Bengal tiger as a pet in your house. It is what allowed states to ban free-standing billiard halls or bowling alleys as contributing to public disorder.

Notably, American courts long insisted that the police powers limited as well as empowered government officials. Legislatures possessed a lawmaking power to act in the public interest, but they could not properly be understood to possess a lawmaking power to exercise public force to advance favored private interests. My sometimes coauthor Howard Gillman has a magnificent book outlining the rise and decline of the police powers jurisprudence that state and federal courts once used to emphasize the constraints on government power. Courts once emphasized that state legislatures could not, under the guise of the police powers, simply declare that a previously lawful business was now illegal and all of its inventory was now contraband that could be seized by the government (as states did during the first wave of alcohol prohibition in the early nineteenth century). Courts informed legislatures that they could not simply prohibit individuals from pursuing their non-noxious vocations in their private residences. While governments could, in the name of public safety, regulate whether bakeries maintained unsanitary conditions in their work space, they could not regulate how many hours per week a baker could work.

States often enough abuse the police powers, and courts frequently do not stand in the way of such abuses. It was also the police power that underwrote Progressive eugenics measures like the forced sterilization of those deemed mentally deficient by the state and racist measures like the ban on interracial marriages. But the larger point is that American constitutional jurisprudence has long recognized a vast authority on the part of the states to regulate private social and economic activity in the name of the public welfare.

Dramatic measures to address the spread of disease have long been a part of those police powers, and we have long recognized that extraordinary circumstances could justify extraordinary state actions. When incorporating the village of Brooklyn, for example, the state legislature of New York authorized the creation of a "board of health" empowered "in the case of the prevalence of any such [pestilential or infectious] disease in any part of the village, to inclose and shut up such infected part, so as to prevent all intercourse therewith." The state of New Hampshire authorized local "health officers" to "remove any person infected with the small pox, the malignant cholera or other malignant pestilential disease, to some suitable house, to be by them provided for that purpose . . . and make such regulations respecting such house, and for preventing unnecessary communication with such persons or their attendants, as they may think proper." The state of Massachusetts directed town leaders "when the small pox, or any other disease dangerous to the public health, is found to exist in any town" to "use all possible care to prevent the spreading of the infection, and to give public notice of infected places to travelers, by displaying red flags at proper distances, and by all other means, which in their judgment shall be most effectual for the common safety."

Government officials might misuse their discretion or make bad policy choices about how best to combat the spread of an infectious disease. But drastic governmental action to stop an epidemic has long been understood to be an appropriate limit on individual liberty in order to protect public safety.

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  1. Let’s take a more recent and realistic example — five years ago, in response to a predicted snowstorm, (current) Governor Charlie Baker literally shut down all the roads in the state for two days — making it a crime to drive anywhere.

    Didn’t tell people of the wisdom of staying home (as other Governors did) but criminalized driving.

    And now he’s wondering why our grocery stores look like something out of the former Soviet Union — he’s finally realized that people are afraid that he might do the same thing again, but I digress….

    1. What bothered me most was that “professional” journalists — those on the payroll of a “recognized news outlet” were exempt, but citizen journalists (and people hoping to get a storm photograph that they could sell to said news outlets) were not.

      I don’t remember anything in the First Amendment about “freedom of the governmentally-recognized press” — my view always was that the freedom explicitly was for those whom the government didn’t recognize as a news outlet. I’m reminded of Huey Long and his attempts to shut down newspapers that were critical of him — and SCOTUS’ response to that.

  2. Unfortunately, it doesn’t matter because your local court has probably closed its doors.

    1. Read 28 USC 452 and get back to me.

      1. That just means that there is no statutory time at which courts have to be cloesd or during which they are unable to act. Many federal courts around the country are in fact currently closed, or are open only in a very limited capacity (which will likely not extend to adjudicating a lawsuit of the kind under discussion here).

      2. And yet many courts are closed.

        It’s like there is some sort of break or allocation of authority between different parts of the government.

        I’m sure there’s a term for this.

  3. I loved “That the keeping of a billiard hall has a harmful tendency is a fact requiring no proof” in the linked decision. Judicial notice is such a great barometer of public mores. Like my 2 Bavarian judges, one who proclaimed “that one can drink 6 litres of beer without impeding one’s judgement is a fact known to the court” and one who opined that it is a fact not in need of proof that one can perform on a single bed all the things that make a honeymoon memorable – if necessary by adding leather straps to prevent falling out.

    1. You got trouble, right here in River City, and it starts with T and it rhymes with P and that stands for “pool”.

      1. I learned today that while the 1912 Supreme Court case treats (pocket) pool and (pocketless) billiards with equal levels of disregard, the lyrics of the classic Music Man song are more nuanced, praising balkline billiards and highly praising three-cushion billiards, while painting pocket games as the spawn of the devil.

    2. Heck, pinball was illegal in New York City until 1976.

  4. “Government officials might misuse their discretion or make bad policy choices ”

    should read

    “Government officials will misuse their discretion and make bad policy choices”

    Its already happening.

    1. As I said, already happening per San Francisco Eximiner:

      San Francisco “will legally prohibit residents from leaving their homes except to meet basic needs including visiting the doctor, or buying groceries or medicine, until at least April 7.”
      “Under the order, residents will still be allowed to take a walk, exercise or take a pet out to use the bathroom as long as people remain at least six-feet away from others who are not a member of their own household.”

      40 cases in San Francisco.

      Oh yeah:

      “Homeless people are not subject to the order, but are encouraged to seek shelter.”

    2. Government officials have never properly used their discretion and have never made good policy choices.

  5. “…While governments could, in the name of public safety, regulate whether bakeries unsanitary conditions in their work space, they could not regulate ….”

    I think there is a word or two missing from this sentence, yes?

  6. How about mandatory ‘house arrests?’ Is this Constitutional? I don’t think so.

    “Effective at midnight, San Francisco will require people to stay home except for essential needs.”

    1. See this article, for a today example of local Kentucky officials using police to stop one individual selfish asshole from going out from his house into his community to infect others.

      https://www.yahoo.com/entertainment/kentucky-man-coronavirus-refused-self-150810626.html

      1. Do you think that enforcing a quarantine on one person who is actually sick is the same thing as telling all citizens that they must remain home outside of essential needs?

        I don’t.

        1. Enforcing versus telling.

          Not that SF isn’t being dumb but the outrage here is feeling a bit narritivist.

          1. Let’s presume that SF intends to enforce it, otherwise there’s no point in caring at all what they ‘tell’ people to do.

            Unless you think it’s more fun to just be pedantic about various words and pretend there’s not an underlying issue worth discussing…

            1. I’m not so sure – the government throwing around anti-liberty directives is problematic regardless. Chilling effect, habituation, all that.

              Provided, of course, that they can’t justify that the cost outweighs the benefit.

              If you want to enjoy a discussion of they hypothetical, go for it. (Saw a great argument on another thread of mental illness standards of harm to self and others).

              But that’s not what Bob was going for.

            2. They will enforce it against those without political power, but not those with it. Hence homeless vamps and dog walking exemptions.

              1. “camps”, not “vamps”…

                1. Are you sure? I’ve been in SF, and a lot of them only seem to come out at night….

                  1. Maybe it’s both. Camps of homeless vamps.

          2. So a law that says that anyone receiving an abortion will be burned at the stake cannot be challenged, because it’s merely advisory until actually enforced?

            Not that pro-choice people aren’t being dumb, but the outrage here is feeling a bit narritivist.

            Or is this an SF thing only: all laws are merely telling you what you ought to do, none are actually enforceable in SF? Sadly this seems closer to the truth than is comfortable, given the jury outcome if the Zarate case (which is absurd to anyone who is familiar with firearms).

  7. Pure statist drivel.

  8. It is important to distinguish between whether the government is shutting down businesses in a category generally or they are shutting down a particular company. If the government is shutting down a specific company, due process may require a right to a hearing as to the factual basis of the government’s decision.

    Separately, the government’s decision may be limited by equal protection, right of assembly, or other constitutional limitations. Unfortunately, a crisis such as COVID19 promotes statism, so there is not going to be any investigative journalism about all of the illicit reasons government officials may have for issuing making their decisions.

  9. “Can the Government Just Close My Favorite Bar?”

    Wrong question. The proper question is should they?

    Outside of national chain/franchise operations, most restaurants and bars operate on razor thing margins. They can’t afford to shut down indefinitely. Even a week or two will push close to half of them into bankruptcy.

    Then consider the employees. They have no income in the middle of a crisis, and likely no job to come back to when it’s over.

  10. They can’t close my local favorite bar, it is in my house.

    1. Give them until the end of the week. You won’t be allowed to leave your room.

  11. States‘ 21st Amendment powers include the power to make alcohol illegal. While a state can’t close a specific individual bar, it can make the serving of alcohol, or bars, illegal within a local jurisdiction any time it wants.

    No need for an epidemic.

    I am surprised that Professor Whittington has written a post treating bars as if they were ordinary businesses, that is, as if the 21st amendment were a complete nullify.

    The courts have somewhat narrowed states’ 21st amendment powers since the zenith oF 21st amendment jurisprudence. But it still gives states special powers over alcohol that they don’t have with anything else.

    I am surprise

  12. But if the bar has no infectious patrons, has not had any infectious patrons, where is the harm that business is doing, and where does the power to shut it down come from then?

    1. U.S. Constitution, Amendment 21, Section 2.

      1. A21 S2 would let them stop the bar from serving alcohol. It wouldn’t let them stop a bar from choosing to stay open and serve only non-alcoholic beverages.

  13. I see, so a state government can close all business entities at its discression for anything it considers to be an epidemic. Even a single case of the cold?

    Better yet, how long can a state exercise such authority? 2 weeks, 2 months? Why not two years?

    Yeah, your right. Who the h3ll needs civil rights and the right to travel freely, and not be forced to stay home 24/7? This is of note a case of a 53 year old gentleman in Nelson county, Kentucky being ordered by a court to stay home, The county sheriff has placed a deputy outside of his home, ostensibly to ensure the man does not leave.

    Which raises the question, what if the man had a compelling reason to leave, say his wife was in the hopspital? or a family member is dying in a hospital? What level of force will the deputy use to prevent his leaving? Is lethal force authorized? How long should he be forced to stay home?

    More importantly, if the man is such a danger, why has the city not placed him in JAIL? There is a good reason they have not.

    Actions such as this are an affront to personal autonomamy. To grind citizens under the bootheel of government is both abserd and counterproductive.

  14. I’d note that the “ban on interracial marriages,” while racist, was also a “Progressive eugenics measure[].” In Virginia, both eugenics measures were enacted on the same day (March 23).

    Progressivism viewed in retrospect is usually ugly.

  15. Thank you for this chapter of “American Law for Dummies.”

    I do not hold the predictable comments against the writer.

  16. Warning, Reason. fb is blocking your important pieces that provide alternative views during this crisis. Contact them and protest! My posting of this Keith Whittington piece on bars was blocked–and I assure you, I had not added anything inflamatory. Here’s what I added: “They can. One of the deans of originalist jurisprudence, Keith Whittington, explains the police powers doctrine, with historical examples of its employment during epidemics. IMHO a better regulation for bars than shuttering them would be quadrupled or quintupled room capacity limits, and a keep-a-stool empty b/t each patron rule. Now as for what Bay Area is doing (see my post below), that’s political disease. Call it “CORONA-DESPOTISM” or something. Ctizens there need to stand up, with some kind of shot-across-the-bow warning to their representatives.” Not sure if it’s my calling what San Fran did despotism, or if they’re blocking all your stuff on this, but be on your toes.

    1. It’s not you…, FB’s blocking algorithms are going nuts.
      https://techcrunch.com/2020/03/17/facebook-link-spam-filter-coronavirus/

  17. In this situation, I think that’s a good suggestion to work from home because recently corona-virus issues our Kemimoto Coupon is officially announced that whole employees working from their home. They strictly announced no one can come to the office & especially for an outing or any type of picnic.

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