Coronavirus

Are the COVID-19 Lockdowns Constitutional?

Several courts have invalidated elements of state shelter-in-place orders. Constitutional law Professor Josh Blackman says that the longer they continue, the less legal they become.

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Michigan Governor Gretchen Whitmer says she's fighting a war. And she's using emergency powers in that fight.

But governors are quickly finding that even emergency powers might have their limits.

"Tyranny has a new name and it's called a pandemic," says Robert Muise, a constitutional lawyer with the conservative American Freedom Law Center, and a co-plaintiff in a recent lawsuit the center has filed against Governor Whitmer.

"A quarantine is when you restrict the liberty of people who are sick. And tyranny is when we, you restrict the liberty of people who are healthy," says Muise. 

Muise alleges that Whitmer has violated the First Amendment by banning church services, the Second Amendment by closing gun stores, and the 14th Amendment's Equal Protection Clause by seeming to arbitrarily allow some places to stay open while banning others. One of his clients is a landscaper whom he says was perfectly capable of running his business while maintaining social distancing.

The American Freedom Law Center has also filed a First Amendment lawsuit against New York Mayor Bill de Blasio, who has banned protests but permits walking and jogging.

"This is a total ban on first amendment activity," says Muise.

Josh Blackman, an associate professor of law at the South Texas College of Law Houston (and contributor to The Volokh Conspiracy, which is published here at Reason.com), says that while the emergency orders may have been legal early on, they can become less constitutional as new information about the threat level and the effectiveness of the policy becomes clear.

"If the elected branches say there's some crisis that's going on, the courts are hesitant to second-guess that," says Blackman. "But I think that deference only lasts for so long….Measures that might have seemed necessary and proper months ago, now seem, perhaps, [like] overkill. And I think we're starting to see courts recognize that."

Blackman points to a recent Texas Supreme Court opinion finding that as the threat lessens the "continued burdens on constitutional liberties may not survive judicial scrutiny." A federal ruling out of Kentucky struck down that state's "nonessential" designation of drive-in church services and seriously questioned the constitutionality of the government making such designations at all.

"I don't think the governor can decide what is and is not essential with any sort of objective measure," says Blackman. "When we get to things like religion, the right to bear arms, this definition of 'essential'…[requires more] reasoning to explain why this activity is prohibited than merely saying 'essential.'"

Blackman says that the most relevant case law regarding the lockdowns comes from the World War II era, when the federal government imposed curfews on Japanese-Americans and later forced them into internment camps.

"Now we don't talk about those cases because they're considered really bad," says Blackman.

The Supreme Court did not uphold the constitutionality of the internment camps, which had shut down by the time they considered the relevant case, but Blackman says that they did uphold the curfews. Blackman warns that times of emergency tend to result in hasty and overreaching legal precedent and fears such an outcome if the Supreme Court is forced to weigh in on quarantines or social distancing laws that could affect the 2020 election. 

"Whenever courts decide cases under crunch time conditions without enough time to consider things, the outcomes tend to be pretty lousy."

So far, governors in Wisconsin and Oregon have had their executive orders nullified by state and county courts who ruled that they weren't properly reauthorized by the legislature, and Muise's challenge to the Michigan order is pending in federal court, as is his First Amendment challenge to New York's order.

Meanwhile, some businesses continue to open despite lockdown orders, local sheriffs increasingly refuse to enforce closures, district attorneys refuse to prosecute, and mobility data shows Americans increasingly moving through the world again as they make their own individual risk assessments.

"Civil disobedience has been one way that we've actually made a lot of policy changes here in the United States," says Muise.

Produced by Zach Weissmueller

Photos: Haircut in Michigan, Jim West/ZUMA Press/Newscom; New Yorkers in park during quarantine, DIGGZY/SplashNews/Newscom; Texas police, John Konstantaras/MCT/Newscom; Michigan barbershop, Kimberly P. Mitchell/TNS/Newscom; De Blasio speech in the park, Anthony Behar/Sipa USA/Newscom; Whitmer on Capitol steps, Andrew Layton/ZUMA Press/Newscom; Supreme Court columns, SIPA/Newscom; Whitmer at podium, Brian Cahn/ZUMA Press/Newscom; Protester in front of Supreme Court, SIPA/Newscom; Masked NYPD officer, Lev Radin/ZUMA Press/Newscom; Armed protesters in front of Michigan Capitol, Joel Marklund/ZUMA Press/Newscom; Protesters on steps on Michigan Capitol, Joel Marklund/ZUMA Press/Newscom; Whitmer giving speech on capitol steps, Jim West/ZUMA Press/Newscom; Officers at the Dallas airport, Jeremy Hogan/Polaris/Newscom; California church service, Will Lester/ZUMA Press/Newscom; Drive-in church service, Luke Townsend/ZUMA Press/Newscom; Whitmer at podium, Andrew Layton/ZUMA Press/Newscom; "End the shutdown" sign, Michael Siluk/Education Images/Universal Images Group/Newscom; Masked New Yorkers crossing bridge, Richard Harbus/MEGA/Newscom; De Blasio with bandanna mask, Anthony Behar/Sipa USA/Newscom; Landscaper pushing wheelbarrow, Mark Hunt/Newscom; Landscaper loading trash can, Mark Hunt/Newscom; Empty strip mall parking lot, Jim West/ZUMA Press/Newscom; Gretchen Whitmer meeting first responders, Jacob Cessna/Fema/ZUMA Press/Newscom; Trump points finger at presser, Polaris/Newscom

Music credits: "Prisma" by Tomas Novoa is licensed from Artlist; "Vuelta al Sol" by Tomas Novoa is licensed from Artlist; "Assault" by Max H. is licensed by Artlist; "On the Edge," by Max H. is licensed by Artlist

NEXT: And of Course Looters and Arsonists are Thugs

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  1. Someone at Reason finally asks, 3 months in

    1. You understand Reason is just a blog for urban sophists?

      1. Is that why you’re here? The sophistry?

        Get a life freak show.

        1. I’ll be leaving shortly for Sabbath.

          Get a job, putz!

          1. A black one?
            If it’s black, you can’t go back.
            Thats how it works, right?

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          2. shabbat shalom.

          3. The epidemic has reached a peak today, so there’s no need to panic so much, especially look at the statistics:
            Current coronavirus statistics for 7/04/2020 (worldwide)
            Total infections 1,358,497
            Fatalities 75,895 5.6%
            Recovered 290 572 21.4%
            992 030 73.0% are sick now
            of which serious and critical cases 47 540
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            P.S. Council of specialists:
            Keep calm and watch less TV!

    2. About fucking time. Quarantining healthy people, destroying small businesses, cops arresting and judges imprisoning people. This shit was an unprecedented assault on individual liberty from day one and all of the parsing and hair splitting and “to be sures” about police powers, modeling, IFRs, testing and the rest of the bullshit that Reason has obsessed about for months have always been beside the fucking point. As the article notes, the last time we saw anything approaching this level of tyranny in the US was FDRs appalling treatment of Japanese Americans. But even that only affected a tiny minority of the population. And SCOTUS finding that racist curfews are just swell isn’t the first or last time they shit all over the constitution. I’ve was a Reason reader before Al Gore invented the internet but I’ve lost a huge amount of respect for the publication first with their TDS infection and now with their statist response to the covid scam. I know a police state when I see one and I don’t need some fucking judge to point it out.

      1. I too read Reason starting in the 1970s (albeit the late ’70s), and the skewing of their line was noticeable for a few years before TDS. But now it’s stretched and twisted in so many ways, the skew is pervasive rather than subtle and just annoying.

        I don’t mind at all their having picked up non-libertarian writers, because that’s how you get good material. What’s discouraging, though, is seeing writers who were previously there partly because they were good and partly for their line now apparently being deflected from their line by what looks suspiciously like pressure.

        1. Pretty much the only honest to goodness libertarian left whose material still appears here is Stossel. I figure they must have signed a long term contract with him or something many years back.

          The small number of other ones like Dave Harsanyi all either left voluntarily or were pushed out by Welch.

          “I’m a liberal.”
          -Matt “Welchie Boy” Welch

          1. Was musing early today about which “Reason” contributor deserved the libertarian label, and I came to the same conclusion as you.

            What I’m not sure about is if Mr. Stossel would give himself that label.

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          2. The othe day, I happened to run across a column by Matt Welch from a couple years ago in which he dismissed Devon Nune’s memo about the FBI’s investigation into the Trump campaign as mostly incorrect. I wonder if he has posted a correction since then. Or if he even realizes how wrong he was.

  2. Michigan Governor Gretchen Whitmer says she’s fighting a war.

    And she’s outnumbered by Michiganders who prefer freedom to tyranny.

    1. Are you sure about that?

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  3. Michigan Governor Gretchen Whitmer says she’s fighting a war.

    Since her enemy only resides inside human bodies, she is fighting a war against the citizens of Michigan. Suddenly all her tactics make perfect sense!

    1. All statists are fighting wars against either enemies that are in their citizens bodies or only in their own heads.

    2. And the war against the other governors who want to be Biden’s VP, to see who can tighten the shutdown screws the tightest without ticking off the voters so much that the governor loses her/his job too.

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  4. How can something be less constitutional? Either it is, or it ain’t. And all this stuff ain’t.

    1. Questions of constitutionality are relative and, prior to be ruled upon, fall on a spectrum. “More” or “less” constitutional is a measure legal analysts use in predicting possible outcomes in the event of a ruling. What they mean by “more” is “closer to being ruled constitutional” and what they mean by “less” is “closer to being ruled unconstitutional.

      1. Constitutionality is determined by every state-government officer and every national-government officer, in each case only for the time being. The scope of judicial officers is limited to individual cases, and does control the actions of the other officers as they legislate and execute laws in all other cases.

        What each individual officer himself considers constitutional within the scope of his job is what in practice is constitutional, in each officer’s sphere of operation and to the extent of that officer’s power, for the duration of his time in that job. His informal but moral authority and duty is his conscience, and this is equally his duty. His formal legal authority is through his oath to support the Constitution, or in the case of the president, to protect the Constitution; and this is equally each respective officer’s duty.

        The fact that constitutionality is, in practice, the net result of each individual officer’s ongoing responsibility and duty at each point in time, such that constitutionality is never permanently settled, is the supreme law.

        1. What are you talking about?

          1. He’s explaining (poorly) relativism, and that law is fluid.

            Yes, these aren’t the laws of physics.

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        2. There’s “constitutional” and then there’s “unconstitutional”, and then there’s the “gray area”, and pretty much everything is in the gray area these days.

  5. Derek Chauvin has been charged with third-degree murder and manslaughter.

    609.195 MURDER IN THE THIRD DEGREE.
    (a) Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years.

    (b) Whoever, without intent to cause death, proximately causes the death of a human being by, directly or indirectly, unlawfully selling, giving away, bartering, delivering, exchanging, distributing, or administering a controlled substance classified in Schedule I or II, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years or to payment of a fine of not more than $40,000, or both.

    Chauvin is going to get off so easy.

    1. What makes you say that? Seems like he is potentially looking at 25 years.

      1. Yeah, he’s facing 25 years, but I’ll be surprised if he does five. My guess is he pleads down to manslaughter alone. It wouldn’t shock me if he pleads out to negligent homicide, which is charged as second-degree manslaughter in the state of Minnesota.

        1. I don’t think there is any prospect of a plea deal here. The evidence is solid.

    2. Are you saying the charges are too light or that you think they won’t convict?

      I think those charges strike a pretty good balance. I’d hate to see them go for murder one, and then he walks.

      1. I think the charges are too light. There’s something about his smug expression in the pictures of him with his knee on the vic’s neck that drives me nuts. But I do agree that overcharging is a concern. Convict him of a felony, and at least he’ll be foreclosed from most careers involving direct human care for the rest of his life.

        1. Hopefully, that’s after a long stay in the government hotel for wayward citizens….

          ….unless there is jailhouse justice.

    3. It sounds like it fits the crime, and is less likely to be plead down to simple assault.

      1. He’ll get his pension either way. And probably his job back when he gets released for good behavior.

      2. If you want to get someone off on manslaughter you charge w murder since you need to provide motives and intent.

        If you want someone to get charged and convicted of manslaughter, stick to manslaughter.

        1. In many states, and formerly Ohio, my state, ‘manslaughter’ and ‘third degree murder’ were more-or-less the same thing. Did the cop intend to kill the guy? I don’t believe so.
          The bad thing in Ohio: if the guy isn’t convicted, the police unions are so powerful that he’d be back on the job, with back pay.

    4. Even if he gets off, he’ll be dodging street justice every minute for the rest of his life. That guy will never sleep again. The mob will disagree, but in my opinion, that is the perfect punishment. Cruel AND unusual.

  6. I’m not against all restrictions on liberty in the case of communicable diseases. But the restrictions have got to relate to specific threats or nuisances posed to society at large. Like someone who, although infected and blameless, continues to act in perfectly innocent ways that threaten others with infection. That person should be quarantined and compensated.

    But what we see here are edicts imposed broadly on the general population, just to reduce the chance that some of them may be infected and passing the agent to others. We’re seeing rules made apparently just to reduce the total amount of contact by anyone with anyone else, which is the only sense i can make of edicts that say you can’t gather except for various activities that are deemed either essential or that you couldn’t get away with legally restricting. Once you get down to quantitative discouragement by force, then you’re not making rules that enhance everybody’s freedom any more, you’re just taking utilitarian guesses about total welfare.

    1. Most San Francisco bath houses still have a strict “Don’t Ask, Don’t Tell” policy.

    2. Yes, a one size fits all policy is absurd. But our overlords cannot do subtlety.

    3. “But what we see here are edicts imposed broadly on the general population, just to reduce the chance that some of them may be infected and passing the agent to others.”

      It’s a logical extension of the Precautionary Principal; anything that might be a threat is declared a threat and actions are taken by the body politic to prevent it.

      In the end, this policy results in wrapping every citizen in bubble pack, ensconcing them in a steel re-enforced concrete crypt and feeding them through a straw. Television is optional.

      All of this “for public safety and safety of the individual”.

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  8. I think the Wisconsin Supreme Court got it right: no government official has the authority to quarantine healthy people beyond the incubation period of the virus, or 14 days in this case. And preventing someone from working or running their business is just about the biggest infringement of liberty there is, short of actual imprisonment. And even when governors or health czars are implementing emergency orders, they are legally bound to follow the laws the state has previously passed concerning the granting of emergency powers. Which all seems obvious.

  9. Nope, the lockdowns were completely illegal. kinderbed

  10. “Civil disobedience has been one way that we’ve actually made a lot of policy changes here in the United States,” says Muise.

    Certainly an inspiring observation. That Americans, real Americans, might decide for themselves what constitutes tyranny shows us all that the spirit of our Constitution is far from dead.

  11. CJSCOTUS Bob, Kagan, RBG, Sotomayor, and Breyer said yesterday that it’s not their place the judge the lawmakers on the ground regarding shutting stuff down.

    Governors Uber Alles

    OrangeManBad

  12. Are the COVID-19 Lockdowns Constitutional? Yes Offcourse Jasa Website Sumedang

  13. I can’t belive the number of unrerasonable and dumb arguments presented here. And this site is called “Reason”?

    What does “healthy” mean in this Pandemic? There is a word called “Asymptomatic” which means one CAN HAVE THE VIRUS W/O SYMPTOMS and THEREFORE NOT KNOW THAT THEY ARE “UNHEALTHY”.

    It’s as simple as that.

    Since testing was so lax and lame you CANNOT KNOW HEALTHY from UNHEALTHY!

    Wow.

    1. Whilst I agree with you in terms of simply not being able to know who is infected, or not infected, I disagree with the steps some governments have made.
      Block off access to older people … and you are done. Nothing more would have really been needed.

  14. Familiar are you with the phrase, your first amendemt right end at my nose?

    Anyone, everyone, so uninformed about “health” and viruses, and how viruses are transmitted from person to person, here, are basically breathing possible virus into other people’s faces!

    There is some of the lamest commentary here that I have ever seen.

    Most are NOT reasonable people, but hardcore Conservative-Libertarians-Ideologues and Know-Nothings.

    I feel sorry for you all.

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