Coronavirus

A Pandemic Does Not Suspend the Rule of Law

Courts are beginning to recognize that public health powers, while broad, are not a blank check.

|

The recent court decisions overturning COVID-19 lockdowns in Wisconsin and Oregon focused on abstruse issues of statutory interpretation. But both cases also addressed a more fundamental question: Is the rule of law suspended during a public health emergency?

In response to the COVID-19 pandemic, state officials have imposed unprecedented restrictions on our liberties and livelihoods, acting on the assumption that they can do whatever they think is necessary to protect the public from a potentially deadly disease. The courts, which were initially reluctant to second-guess state responses to COVID-19, are beginning to recognize that public health powers, while broad, are not a blank check.

The Wisconsin case involved a dispute between two branches of the state government. The Republican leaders of the state legislature argued that Andrea Palm, a Democrat who runs the Wisconsin Department of Health Services, was exercising powers she had never been granted when she ordered the closure of "nonessential" businesses and confined residents to their homes except for purposes she approved, threatening violators with fines and jail.

This case was not simply a partisan spat. It raised the question of whether a single executive branch official can unilaterally criminalize heretofore legal behavior, based on nothing more than her own judgment of what is required to protect public health.

The Wisconsin Supreme Court last week concluded that Palm's order qualified as a "rule" under state law, meaning she could not legally impose it without following emergency rulemaking procedures she admittedly ignored. Those procedures, Chief Justice Patience Roggensack said in the majority opinion, provide "the ascertainable standards that hinder arbitrary or oppressive conduct by an agency," ensuring that the "controlling, subjective judgment asserted by one unelected official…is not imposed in Wisconsin."

Palm argued that her order was authorized by a statute that says her department "may authorize and implement all emergency measures necessary to control communicable diseases." But as Justice Daniel Kelly noted in a concurring opinion, that broad interpretation erases the distinction between the legislative and executive branches.

"Under our constitutional form of government, the Legislature cannot possibly have given the Secretary the authority she believes she has," Kelly wrote. "If we agreed with the Secretary's reading of [the law], we would have to conclude the statute violated the separation of powers by conferring on the Secretary the power to make laws without going through the rule-making process."

In the Oregon case, Baker County Circuit Judge Matthew Shirtcliff concluded that Gov. Kate Brown had violated the statute she cited as the authority for her business closure and state-at-home orders. Under that law, Shirtcliff said in a ruling on Monday, such orders can last no longer than 28 days.

Whether or not you agree with these decisions or the policies they overrode, the principle at stake is vitally important. Even in an emergency—especially in an emergency—government officials are bound by the law.

"If we tolerate unconstitutional government orders during an emergency, whether out of expediency or fear, we abandon the Constitution at the moment we need it most," Texas Supreme Court Justice James Blacklock observed earlier this month. "Any government that has made the grave decision to suspend the liberties of a free people during a health emergency should welcome the opportunity to demonstrate—both to its citizens and to the courts—that its chosen measures are absolutely necessary to combat a threat of overwhelming severity. The government should also be expected to demonstrate that less restrictive measures cannot adequately address the threat."

Whether COVID-19 control measures can pass that test, Blacklock suggested, depends on emerging knowledge about the epidemic. "As more becomes known about the threat and about the less restrictive, more targeted ways to respond to it," he said, "continued burdens on constitutional liberties may not survive judicial scrutiny."

I have no doubt that state officials like Palm and Brown sincerely believe they are only doing their jobs. Fortunately, judges are beginning to do theirs.

© Copyright 2020 by Creators Syndicate Inc.

NEXT: Is a public-carry law only unconstitutional where "historical evidence clearly commands" that result?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. In response to the COVID-19 pandemic, state officials have imposed unprecedented restrictions on our liberties and livelihoods, acting on the assumption that they can do whatever they think is necessary to protect the public from a potentially deadly disease.

    So which governor will be the first to invoke the divine right of kings to justify themselves?

    1. I’ll throw a dollar on Whitmer, and 2 on Cuomo. Depending on the odds.

      1. I don’t know, Inslee is a bit of a dark horse in all this.

        1. I Make Money At H0me.Let’s start work offered by Google!!Yes,this is definitely the most financially rewarding Job I’ve had . HDr Last Monday I bought a great Lotus Elan after I been earning $9534 this-last/5 weeks and-a little over, $10k last month . . I started this four months/ago and immediately started to bring home minimum $97 per/hr

          Heres what I do……► Online Jobs provid

      2. Chomp seems like the kind of smarmy fuck that would invoke Prima Nocta just to duck with people.

    2. Phailing Phil Murphy, of the People’s Republic of NJ.

      1. Hey, don’t slam Governor Teeth, he’s doing his…well, somebody’s best.

    3. Meanwhile, the Congress just passed a bill giving schools $10 million to fight anti-semitism.

      1. Arming all the teachers??

      2. Yarmulkes must be worn by all students until we have a cure?

      3. Mandatory circumcision?

    4. The mayor of Champaign IL? Her list of self-appointed powers was essentially unlimited, because both Item 1 and Item 30 (yes, item 30) both boiled down to “I can order anything I want”. Plus she extended her powers 2 miles outside the city limits as one of those Items.

      1. Back on March 10th I think…

        https://bloximages.newyork1.vip.townnews.com/wandtv.com/content/tncms/assets/v3/editorial/5/51/551ced24-6535-11ea-9826-4f4fd396dacb/5e6b960454b21.pdf.pdf

        After the declaration of an emergency, the Mayor may in the interest of public safety and welfare make any or all of the following orders and provide the following direction:

        (1) Issue such other orders as are imminently necessary for the protection of life and property.

        (30) Issue any and all such other orders or undertake such other functions and activities as the Mayor reasonably believes is required to protect the health, safety, and welfare of persons or property within the City or otherwise preserve the public peace or abate, clean up, or mitigate the effects of any emergency or disaster.

        Why bother with any thing after (1)?

        I especially liked

        (6) Order the discontinuance of selling, distributing, dispensing or giving away of explosives or explosive agents, firearms or ammunition of any character whatsoever;

        (7) Order the control, restriction and regulation within the City by rationing, issuing quotas, fixing or freezing prices, allocating the use, sale or distribution of food, fuel, clothing and other commodities, materials, goods or services or the necessities of life;

        (8) (a) Order City employees or agents, on behalf of the City, to take possession of any real or personal property of any person, or to acquire full title or such lesser interest as may be necessary to deal with a disaster or emergency, and to take possession of and for a limited time, occupy and use any real estate to accomplish alleviation of the disaster, or the effects thereof;

        (29) Exercise such powers and functions in light of the exigencies of emergency or disaster including the waiving of compliance with any time consuming procedures and formalities, including notices, as may be prescribed by law.

      2. Then there’s

        (15) Temporarily suspend or modify, for not more than sixty (60) days, any regulation or ordinance of the City, including, but not limited to, those regarding health, safety, and zoning. This period may be extended upon approval of the City Council.

        But note that 11 effectively renders 15 moot:

        (11) Temporarily suspend, limit, cancel, convene, reschedule, postpone, continue, or relocate all meetings of the City Council, and any City committee, commission, board, authority, or other City body as deemed appropriate by the Mayor.

        So many Bill of Rights violations in one executive document…

        1. I forgot this part, which, when combined with (11) does render the emergency permanent and her powers unlimited…

          Section 13. Duration. This ordinance shall be effective for 28 days from the date of passage. The ordinance shall continue for 28-day periods thereafter unless repealed or amended by the City Council.

          She can disband the City Council, then the City Council cannot prevent the automatic 28-day renewal…

          1. Wow. Wins Banana Republic Dictator of the Week award…

  2. Under the Oregon statute linked, even if Brown’s actions were confined to what’s legal, that amount of power is wayyyyyyy too much.

    (3) During a public health emergency, the Governor may:
    (a) Close, order the evacuation of or the decontamination of any facility the Governor has reasonable cause to believe may endanger the public health.
    (b) Regulate or restrict by any means necessary the use, sale or distribution of food, fuel, medical supplies, medicines or other goods and services.
    (c) Prescribe modes of transportation, routes and destinations required for the evacuation of individuals or the provision of emergency services.
    (d) Control or limit entry into, exit from, movement within and the occupancy of premises in any public area subject to or threatened by a public health emergency if such actions are reasonable and necessary to respond to the public health emergency.
    (e) Authorize pharmacists licensed under ORS chapter 689 to administer vaccines to persons who are three years of age or older.
    (f) Take any other action that may be necessary for the management of resources, or to protect the public during a public health emergency…

      1. Why even bother with (a)-(e)?

        1. Patina of legitimacy??

  3. Meanwhile Whitmer won another decision.

    1. Widely expected, and was a pretrial motion.

  4. Its getting worst day y day

  5. I can only hope the Third Circuit will step in regarding the religious discrimination happening right now in the People’s Republic of NJ. It is absolutely incredible.

    We can go to the beach….but not go to synagogue
    We can go to offices….but not go to synagogue
    We can go to non-essential businesses…but not go to synagogue
    We can go to state parks…but not go to synagogue

    Religious 1A expression rights have been trampled and spat upon by Governor Phailing Phil Murphy, and a compliant Duma Legislature in the People’s Republic. We need judicial intervention.

    And I cannot believe I am even writing this in 2020 America.

    1. Contact the local Obergruppenführer.

    2. Hopefully Murphy will be another 1-termer, just like his criminal Goldman Sachs co-worker Jon Corzine was.

      Maybe the (R)s can find someone who won’t phone in their campaign, like Guadano did.

    3. Actually, you can go to the synagogue; you just have to face up to the possibility of arrest, and an ensuing lawsuit to keep it from happening to anyone else.
      Martin Luther King showed the way.
      (oh, yeah, and you can never, ever, vote for any democrat)

      A long, long, time a go, there was a slogan “never again”.

      1. That’s what I said after my Bar Mitzvah.

        1. That’s what you said to the mohel!

          1. I’ve cut this thing 3 times and it is still too short!

    4. “We can go to the beach….but not go to synagogue”
      Perhaps Jews need to re-frame the argument against this outrageous prohibition as they are uniquely positioned because Christians have no recognized equivalent. Jews should claim antisemitism to bring the shitheels to account and see how they defend against that.
      Governor Murphy, there are many out there deeply concerned that you’re an anti-semite for your prohibition against Jewish worship. Worship is an integral part of Jewish identity and culture. How do you respond, you Jew hating POS?

      It would be interesting to see if it carries the juice of a simple utterance of an accusation like “racism.”
      Senator Cruz suggested that da Blasio should be looked into on those grounds.

      1. LOL…I like it. I’ll try that one out. = Governor Murphy, there are many out there deeply concerned that you’re an anti-semite for your prohibition against Jewish worship. Worship is an integral part of Jewish identity and culture. How do you respond?

    5. Unfortunately, the religious institutions (i. e. churches, synagogues, mosques), have seating arrangements where people are super-close to each other, and therefore those who attend services in these places are at even greater risk of becoming infected with the Covid-19 Virus and/or infecting other people. That’s the problem!

  6. “Any government that has made the grave decision to suspend the liberties of a free people during a health emergency should welcome the opportunity to demonstrate—both to its citizens and to the courts—that its chosen measures are absolutely necessary to combat a threat of overwhelming severity. The government should also be expected to demonstrate that less restrictive measures cannot adequately address the threat.”

    So this is the secret “unless they really want to” exception to the “Congress shall make no law…” rule? We are endowed by our Creator with certain inalienable rights, we created government to secure those rights; we were not granted those rights by government, the government has absolutely no authority to suspend those rights. They aren’t “liberties”, they’re rights – fuck off, slaver.

  7. The flu kills tens of thousands every year are we to expect lockdowns every winter?

    1. Yes. Feature, not bug. We now live in Society 2.0

      1. Which is a badly named fork of prison 1.5

    2. Yes. You heard of daylight saving time? The new normal is ‘life saving time’ when from Jan 15 thru May 15 all non essential businesses will be closed and stay at home rules will be enforced.

      1948 to 1984 = 36 years
      1984 to 2020 = 36 years

      Not a coincidence!

    3. Some governors want to retain the power all year.

      1. Chairman Xi has them beat.

        1. They’re well aware that they’re playing catch up with him, but damn it if they’re not determined to do it.

    4. Come on now, IceTrey! The Covid-19 Virus is even more infection and more deadly than the season flu(s).

  8. Palm argued that her order was authorized by a statute that says her department “may authorize and implement all emergency measures necessary to control communicable diseases.”

    Any word in that statute quote (well, maybe not “to”) could tie up legal scholars for decades. What if Palm decided it was “necessary to control” by, say, firebombing a city?

    1. Executions would really control diseases. Got a cough? Up against the wall!

    2. “firebombing a city”
      That clearly depends upon which city would be the target

      1. Philadelphia!

      2. Dresden?

          1. Pearl City, HI?

    3. Rich, do you recall what Clemenceau once said about disease? … He said “Disease is too important to be left to the beaurocrats.” When he said that, fifty years ago, he may have been right. But today disease is too important to be left to the people. They have neither the time, the training, nor the inclination for strategic thought. I can no longer sit back and allow CV18 infiltration, CV19 indoctrination, CV19 subversion, and the international CV19 conspiracy to sap and impurify all of our precious bodily fluids.

      1. Col. Ripper, is that you?

  9. Unfortunately, here in Oregon, the state SC issued a stay on Brown’s orders. so, one lone judge stood up, and was promptly wack-a-moled.

    1. One judge on the SC issued a stay. The rest of the court might man up

      1. I hope you are correct, but ‘m not optimistic.

  10. I have no doubt that state officials like Palm and Brown sincerely believe they are only doing their jobs.

    Really? You don’t think maybe they enjoy flexing their muscle a little?

    1. You don’t think they think that is their job?

      Just as Caesar’s wife must be seen to be above suspicion, so must Kings be seen flexing their muscles even when not necessary.

    2. I have no doubt that they had secret red folders in their top drawer all ready to go with their emergency powers all laid out, just quivering with excitement when a plausible “crisis” let them crack the seal on that folder and whip out the the tyranny.

      1. In Alameda county, Dr Pam has announce that the locked in order remains in effect until she says otherwise.

  11. Actual pearls to clutch. She looks like a lot of fun.

    1. The name for one of the recall campaigns against her last year was “Flush Down Kate Brown”.

      Unfortunately, it managed to split the signatures between it and the one run by the GOP, so in the end neither had enough. If there had been only one campaign, or if all unique signers had signed both petitions, it would have been on the ballot.

  12. Yeah, I’m going to be that pedantic asshole.

    You’re right, Sullum; the pandemic does not suspend the rule of law. The politicians do. It annoys me that we keep saying it’s “the pandemic”. Just like when I see headlines that the pandemic has decimated the economy. It’s not the pandemic that’s doing that. It’s the fucking politicians and their fucking lockdowns, and quarantines, and safer-at-home bullshit.

    I remember seeing Instagram posts from restaurants in the Chicago area praising Pritzker at the start of this thing saying he was doing the right thing and they were glad to have his leadership. I wonder how they feel about that now, weeks later?

    1. We’re all in this together, don’tcha know.

      1. Misery loves company.

        1. Je suis Caan

      2. One size fits all.

        Let’s apply that to shoes.

        1. Strictly speaking it is true. At least by one meaning of “fits”.

    2. He might have ruined their business, livelihood, and severly damaged the livelihood of their employees, but when it comes time to pull the lever, they won’t think of voting for anyone else, ’cause the (D).

      1. No matter how much it might hurt, people seem to love getting f****d by the (D).

    3. Just like the virus itself doesn’t kill you, it’s your own immune system’s response that does you in. It’s the guv response that is causing the most havoc.

      1. Only auto-immune diseases do that. This infection and most others kill you directly.

        1. As I understand it, most people dying from covid are dying from bacterial pneumonia. And I have heard suggestions that some cases get really bad because the immune system is working too hard and destroys a lot of infected cells in the lungs.

        2. It’s the inflammation of the lung tissue that is the problem, from what I’ve read.

          1. BigT….To be very precise. The lung cells that produce surfectant (the substance that facilitates transfer of O2 to our blood) have a receptor blocked by the Wuhan coronavirus. In response, the body floods the zone with immune cells and the complement system. That is what cause the inflamation.

            Result: you slowly asphyxiate and drown

        3. There’s a difference between auto-immune systems actually turning traitor and actively attacking the body, and collateral damage from the body trying to do the right thing.

          1. A nice symbolic microcosm of our governors’ responses?

        4. Excpet for sepsis and the dreaded cytokine storm.

    4. Yes, thank you. Stop talking about the horrible effects of the response to the virus as if they were the inevitable result of a new virus. It was a choice made by people.

  13. Democrats are classic tyrants who believe the constitution is an object to get around. Obama said it himself in an interview he wished was buried. Oh wait it was ignored almost completely by the media. Nutters all.

    1. You have a link to Obama’s statement. I’d like to remind a few folks.

    2. I just saw a meme going around Facebook that the Obama administration was scandal free. What reason do I have to believe you over a trusted meme?

      1. He didn’t even make it past inauguration day without a scandal – remember the cop he called stupid, and had to walk it back 3 days later?

        1. Again, if it’s not a meme, I have to assume you’re making it up.

          1. It’s from pre-meme days, like dinosaurs.

  14. All these out of control state local government officials point to the need to carefully scrutinize all government officials, even the dog catcher. We need to make sure that we don’t put proto-dictators and petty tyrants in place. Also, several jurisdictions, most notably Los Angeles, have unqualified public health officials.

    1. Fortunately, there is an easy indicator for identification; the (D) after the candidates name.

      1. He’s talking about proto-dictators and petty tyrants and you just leap over Trump as if he doesn’t eist. Stop watching FOX News. It’s very bad for you.

        1. Trump isn’t the one dispatching men with guns to enforce his rules.

          1. Yet he’s managed to kill tens of thousands of Americans via sheer stupidity.

        2. Do you have a state issued permit to exercise your rights?

          1. He seems to think liberty is only what the state allows, so what did he do before the government said it was OK to be gay?
            Did he turn himself in?

  15. Where the fuck were the courts two months ago?

  16. Some technocrats need be made an example of

    1. Sorry, torches cause too much CO2 emission, and can no longer be used, even for ‘free’ speech.
      Pitchforks are still good, until they get administratively classified as machine guns.

      1. Ropes are carbon neutral.

        1. Torches burning tree pitch or plant or animal based oils are too.

  17. You blame politicians, but who elects them? How long have U.S. libertarians had to grab “market share” from the two party duopoly? 50 years? How’s that going? If the coronavirus has proven anything–at least to me–it’s that any decent measure of human freedom requires freedom from humans.

  18. I’m not sure why anyone is surprised or outraged by this. We’ve been living in a pen-and-phone-ocracy for quite some time. I honestly believe that when November rolls around this year this will be the perfect excuse for a “elections are too dangerous” or the classic “this is no time for a change in leadership” to finally wipe the last veneer of democracy off of America.

    1. Most of the people here would support canceling the election and then make up some half-assed excuse for why it’s the pro-freedom move.

        1. All the time.

      1. Memes that Trump and co-conspirators will declare the November election as too dangerous are unmistakable signs of ravings of a leftist nut-job.

  19. No, but a state of emergency can change laws.

  20. This case was not simply a partisan spat. It raised the question of whether a single executive branch official can unilaterally criminalize heretofore legal behavior. grand rapids electricians

  21. When premature reopening of society results in even more death than we’ve already seen, will Reason admit it was wrong, or will it just say we didn’t shit enough freedom for it to really work?

    1. Regardless of what we do about the same fraction of the population will die. About the only ones we can save are those in nursing homes, where closing them to visitors will help.

      1. Of course, closing them to visitors also means that some of those residents won’t be able to have a visitor for the rest of their lives.

        1. Perhaps they could have visitors in an outdoors setting where transmission is low and with both patient and visitors with PPE.

    2. Tony
      May.20.2020 at 4:11 pm
      “When premature reopening of society results in even more death than we’ve already seen, will Reason admit it was wrong,…

      No, you cowardly piece of left shit. The famous quotation isn’T “GIVE ME LIBERTY — unless I might get sick.
      You scared of catching something? Crawl in a hole and stay there. It’s not my job to keep you healthy.

      1. Then it’s not my job to make sure you are literate. Give me back the money I spent on turning you into a semi-functional adult human instead of the feral monkey you’d be without social cooperation and the money it costs.

        1. Your health isn’t my responsibility and neither is your education. Nor are my health and education yours. Since “social cooperation” produces risk-averse, scientifically illiterate, panic-prone, pants-shitting retards like you, I’ll take my chances without it.

    3. People are dying because of the shutdown. Cancers not detected or treated. Strokes. Drugs. Alcohol. Etc.

  22. “Emergency” to keep us “safe” and protect “public health.” Here’s the thing: public health IS politics. The talking head “health professionals” have an agenda 100% of the time. The “greater good” leaves medical liberty in the dust. There will be No Stopping these folks if we continue to let them roll. This virus is looking to become endemic, meaning that we will likely always find positive cases when we look for them, with or without vaccines and treatments. Our bodies are designed to handle viruses…. until we can’t because we are sick, old or frail and succumb to them. The newest thing here is that this is the first time the public has really been made aware of it and since they don’t understand what they are seeing, the panic is that much easier to invoke and the control is that much easier to gain. When you allow leaders to take your risk away, what is the point of liberty? Americans have lost their way.
    -RN

  23. “A Pandemic Does Not Suspend the Rule of Law”

    The constitution OTOH, well, pbbbbbbbph…

  24. They were wrong to usurp power we didn’t grant them and they were additionally totally wrong about the level of threat. Then they finished with doing stupid things to try to protect the hospitals by avoiding overloading of the system and instead under-loaded the majority of the system, wreaking havoc on the healthcare system as a direct consequence. We went from “something might happen to some people” to “something very bad will definitely happen to a great many people.”.

    Gotta love having “Top Men” working for our benefit, whether we derive a benefit or not.

    1. Meanwhile these officials are studiously avoiding accounting for the adverse health effects of their very orders and the atmosphere of public fear they have created in their efforts to “follow the science.”
      As if they would know what that is, if it stared them in the face.

  25. “Is the rule of law suspended during a public health emergency?” No. Fuck off. A better question is, “Is a mortality rate of three one-hundredths of a percent a fucking public health emergency?” Also no, and also fuck off.

Please to post comments