N.H. Court Rejects Challenge to Ban on Gatherings of 50 or More People

This came in yesterday's Binford v. Sununu, written by state court Judge John C. Kissinger. First, the court concluded (correctly, I think) that the Governor had the statutory authority to impose the restriction:

Plaintiffs contend that Governor Sununu lacks the [statutory] authority to declare a state of emergency because the circumstances surrounding the COVID-19 outbreak do not amount to an emergency under the definition of emergency in RSA 21-P:35. Plaintiffs argue that "New Hampshire has had just 17 people diagnosed with [COVID-19], and ZERO deaths. In a state of over 1 million people, those numbers alone make it clear this is not an 'emergency."' This argument is without merit.

It would be irrational to find that the governor must wait for the health care system of New Hampshire to be overwhelmed with patients suffering from COVID-19 before he is authorized to declare a state of emergency and take preventative measures to slow the spread of a highly contagious and potentially deadly disease. Indeed, RSA 4:45 contemplates the need to take preemptive action and explicitly authorizes the governor to do so. Specifically, RSA 4:45, I permits the governor to declare a state of emergency where a disaster is "imminent or has occurred within this state." (Emphasis added)….

The court also soundly rejected some constitutional arguments that the plaintiffs had made only briefly: "Plaintiffs do not assert any facts that would lead the Court to conclude that Governor Sununu has declared martial law, has taken any property from Plaintiffs without just compensation, or has exercised impermissible control over Plaintiffs' bodies."

It then turned to the freedom of assembly challenge, and again I agree with its analysis here:

Multiple jurisdictions have contemplated the executive's authority to suspend or infringe upon certain civil liberties during states of emergency. See Smith v. Avino, 91 F.3d 105, 109 (11th Cir. 1996) ("In an emergency situation, fundamental rights such as the right of travel and free speech may be temporarily limited or suspended."); United States v. Chalk, 441 F.2d 1277, 1280 (4th Cir. 1971) ("The invocation of emergency powers necessarily restricts activities that would normally be constitutionally protected."); In re Juan C., 33 Cal. Rptr.2d 919, 922 (Ct. App. 1994) ("An inherent tension exists between the exercise of First Amendment rights and the government's need to maintain order during a period of social strife. The desire for free and unfettered discussion and movement must be balanced against the desire to protect and preserve life and property from destruction."); ACLU of W. Tenn., Inc. v. Chandler, 458 F. Supp 456, 460 (W.D. Tenn. 1978) (explaining that the governor has the authority to impose "limitation on the exercise of [First Amendment rights] only in very unusual circumstances were extreme action is necessary to protect the public from immediate and grave danger").

The 11th Circuit has articulated a two-prong test to determine whether an executive order passes constitutional muster during a state of emergency. In Avino, the Governor of the State of Florida issued an executive order declaring a state of emergency in the wake of Hurricane Andrew. This executive order provided that Miami city and Metropolitan Dade County officials could impose curfews from August 24, 1992 through December 21, 1992. The Miami Dade county manager set the curfew from 7:00 pm to 7:00 am and called in the National Guard and other law enforcement officials to aid local police. By October 2, 1992, the curfew was in effect from 10:00 pm through 5:00 am. County residents were required to stay in their homes during the curfew hours unless otherwise authorized. The curfew was ultimately lifted on November 16, 1992….

The Avino court began its analysis by establishing that the curfew ordinance must be considered "in the circumstances under which the curfew was instituted." The Avino court noted that the State of Florida was devastated by Hurricane Andrew and that all parties agreed that "[p]olice action was clearly required." The court went on to note that "[c]ases have consistently held it is a proper exercise of police power to respond to emergency situations with temporary curfews that might curtail the movement of persons who otherwise would enjoy freedom from restriction." Id. (citing Chalk, 441 F.2d 1277; In re Juan C., 33 Cal. Rptr.2d 919; and Moorhead v. Farrelly, 727 F. Supp. 193 (D.V.I. 1989)).

The Avino court articulated that in a state of emergency, "governing authorities must be granted the proper deference and wide latitude necessary for dealing with the emergency." Accordingly, the court held that "when a curfew is imposed as an emergency measure in response to a natural disaster, the scope of review in cases challenging its constitutionality is limited to a determination whether the executive's actions were taken in good faith and whether there is some factual basis for the decision that the restrictions imposed were necessary to maintain order." The Avino court went on to hold that there was no suggestion that the Dade County officials acted in bad faith. The Avino court further found that a factual emergency existed necessitating emergency intervention. The court ultimately concluded that under extreme emergency circumstances, "fundamental rights such as the right of travel and free speech may be temporarily limited or suspended."

The case currently before the Court concerns a ban on gatherings in excess of 50 people and a ban on dining in at food and beverage service establishments in order to prevent the spread of a highly infectious and deadly disease. The Court finds that this type of ban is sufficiently analogous to a curfew in response to a riot or natural disaster such that the 11th Circuit's two-prong test established in Avino would apply…. Here, there is no allegation that Governor Sununu has acted in bad faith…. [And] EO 2020-04 set out ample factual bases to conclude that the Governor had the authority to declare a state of emergency concerning the global pandemic caused by COVID-19…. Accordingly, the Court finds that there is a sufficient factual basis for the prohibitions contained within Emergency Order #2.

Further buttressing the Court's finding that the Governor's actions are constitutional is the fact that there are multiple checks on Governor Sununu's authority to enforce Emergency Orders pursuant to EO 2020-04. Absent a renewed factual finding by the Governor, EO 2020-04 will be in effect for only 21 days. RSA 4:45, l(d). In addition, the legislature has the authority "by concurrent resolution" to end the state of emergency at any time and can block the governor from renewing the state of emergency at the expiration of 21 days. RSA 4:45, ll(c). Furthermore, Emergency Order #2 is in effect for a limited duration, beginning on March 16, 2020 and ending April 6, 2020. During that time, should the factual bases for enforcing the Emergency Order change, it is subject to review by the Court….

The court then turned to a different argument for why the order is permissible, and here I think it erred to some extent:

Although the Court finds that the Governor may suspend or limit constitutional rights during a state of emergency, for the purpose of establishing a complete record, the Court will also analyze the facial constitutionality of Emergency Order #2.

"Where … a law regulates speech only incidentally, as a consequences of expressly regulating conduct, it will withstand first amendment scrutiny if, in its application to incidental speech, it is no more restrictive than a time, place, and manner regulation." Comely, 130 N.H. at 691 (citing United States v. O'Brien, 391 U.S. 367, 376-77 (1968)). Determining whether a time, place, and manner regulation comports with the Constitution, requires the Court to employ a three-prong test. Comely, 130 N.H. at 691. The Court must determine whether the regulation: (1) is content-neutral; (2) narrowly serves a significant governmental interest; and (3) allows for other opportunities for expression. Although these cases consider laws rather than emergency orders, the effect of the emergency order is functionally the same. As a result, the Court concludes that the same standard is generally applicable to emergency orders enacted pursuant to RSA 4:45.

The first step of the analysis is to determine whether the restrictions contained within Emergency Order #2 are content neutral. Plaintiffs contend that Emergency Order #2 is expressly content based because of the language in paragraph 1 banning "[s]cheduled gatherings of 50 people or more for social, spiritual and recreational activities." Plaintiffs argue that inclusion of the word "spiritual" expressly targets religious activities and is therefore not content neutral. This argument ignores the remainder of paragraph one which includes an illustrative list detailing the types of events to which Emergency Order #2 applies. Id. (banning gatherings in excess of 50 people for events "including but not limited to, community, civic, public, leisure, faith based, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities"). Based on the inclusion of this illustrative list, Emergency Order #2 is clearly content neutral in that it prohibits any gathering in excess of 50 people, regardless of the content of the event. Accordingly, the Court finds that Emergency Order #2 is content neutral and thereby satisfies the first prong of the time, place, and manner test.

The second step of the analysis is to determine whether the restriction is narrowly tailored to serve a significant government interest…. [B]ecause Emergency Order #2 limits its restrictions to those suggested by the CDC to slow the spread of COVID-19, and because the effects of Emergency Order #2 have a limited duration, the Court finds that Emergency Order #2 is narrowly tailored to serve the government's significant interest.

The final step of the analysis is to determine whether Emergency Order #2 allows for alternative opportunities for expression. Comely, 130 N.H. at 691. This prong of the test is clearly satisfied. As stated above, Emergency Order #2 only bans scheduled gatherings of 50 or more people and dine-in restaurant services. People are free to attend scheduled gatherings with fewer people. They can attend impromptu gatherings of any kind. They are free to communicate via the internet or telephone. They may tune into televised events. They can continue to dine together in their homes or outdoors. There are a wealth of opportunities for individuals to exercise their right to freely assemble and associate that do not require them to gather in large groups or eat at a restaurant during a public health emergency. Accordingly, the Court finds that Emergency Order #2 allows for alternative opportunities of expression….

I think the order is indeed content-neutral, but I think it doesn't leaves open "ample alternative channels" for expression (the general First Amendment requirement for upholding something as a time, place, and manner restriction). If, for instance, a total ban on large gatherings were enacted during normal times—for instance, a total ban on gatherings of more than 50 people in any park, to prevent wear and tear on parks, litter, and the like—it would be seen as not leaving open ample alternative channels: other channels would be more expensive, or wouldn't reach the same audience, or wouldn't convey the same message. (See City of Ladue v. Gilleo (1994).)

Rather, because the order doesn't leave open ample alternative channels, it greatly burdens assembly and speech, and thus can't be defended as a mere time, place, and manner restriction, even though it's content-neutral. Rather, it must be judged under strict scrutiny—not because it's content-based, but because it's so broad and burdensome. Yet it would pass strict scrutiny: For the reasons given above, it is narrowly tailored to a compelling government interest in preventing many deaths from communicable disease (and the availability of alternative means to speak, however imperfect they may be as substitutes for assembly, is one element that makes it narrowly tailored).

The court then rejected the religious freedom challenge:

Nothing in Emergency Order #2 suggests that it is intended to target any religion or specific religious practice. While a ban on scheduled gatherings of 50 or more people may have an impact on the ability for a congregation to assemble at church, the Court concludes that such an impact is merely incidental to the neutral regulation and is otherwise reasonable given the limited duration of the order and public health threat facing the citizens of this State. Accordingly, for all the reasons set forth in the section above, the Court finds that Emergency Order #2 does not unconstitutionally infringe upon Plaintiffs' freedom of religion….

This is correct, I think, under the federal Free Exercise Clause and the Employment Division v. Smith decision. (The New Hampshire Supreme Court has interpreted the New Hampshire Constitution the same way that Smith interpreted the First Amendment, and New Hampshire doesn't have a RFRA statute.) And even if one concludes that, under Smith, strict scrutiny is required because this is a "hybrid situation" where "the Free Exercise Clause [is raised] in conjunction with other constitutional protections, such as freedom of speech and of the press," strict scrutiny would still be satisfied, for the reasons given above.

Thanks to Prof. Lindsay Wiley (American) for the pointer.

Comments

[Libertymike]

The temerity of the court is astounding. To asseverate that the plaintiffs' position is "without merit" is intellectual claptrap.

No, the decision, and its reasoning, is what is without merit.

First, there is no factual basis to support the guvnah's emergency declaration. Fear, promulgated by the mainstream media, the medical-pharmaceutical complex, and petty-tyrants, is insufficient, as a matter of fact, to establish that a genuine state of emergency exists.

That a few dozen people had allegedly contracted covidia at the time of the hearing does not cut the mustard. It should be emphasized that the testing of the Wuhan flu is by no means a paragon of reliability.

Second, there is no language in the First, Second, Fourth, Fifth, or Ninth Amendments that supports the proposition that the rights to be protected thereunder are subject to suspension due to the declaration of an emergency by a governor or other public sector actor. If the framers, and more importantly, the ratifiers, had intended to subject the rights of speech, assembly, keeping and bearing of arms, etc. to suspension during emergencies, real or imagined, they would have so said. They didn't. They recognized that tyrants would always be ready to scream "emergency" as a pretext to suspend liberty and that it is far better to reject such pleas as out of hand.

Third, both the federal and NH constitutions do not confer any type of deference to the governor or to other officials as to the merit of their emergency declarations. Why should courts indulge fellow public sector officers with such deference? Given human nature, it is folly. Given the fact that the vast majority of public sector actors are not makers and producers, and have not created businesses, and have not had to produce and serve upon a voluntary and consensual basis, but, instead, are takers who have spent a good deal of their adult lives on a public payroll, it would be wise not to accord deference to them.

Fourth, Article II of New Hampshire's Bill of Rights declares that all folks have natural rights, including enjoying and defending liberty and acquiring, possessing, and defending property. Those rights are not conditioned upon a covidia free environment.

Of course, this is what happens when you rely upon the kritarchy to safeguard liberty.

[Dilan Esper]

Most of your complaints are extra-legal (having no support in current doctrine), but I do want to specifically tell you that no court will ever adjudicate the issue of whether public health experts in the government are wrong about an epidemic. That's simply way outside the competence of the judicial branch.

If you are a plaintiff and you want to win a case like this, you are going to need to establish that even if the government is right about the scope and danger of the epidemic, the order is still unjustified.

[Eric VonSalzen]

To me, it's a troubling question how a court should decide whether an emergency actual exists when there's a serious question about that – or whether the court should just defer to the Executive for this determination. Here, the court didn’t give serious consideration to the plaintiffs’ claim that there was no emergency; the court simply assumed that the State was about to be “overwhelmed with patients suffering from … a highly contagious and potentially deadly disease”. Obviously true in this case. But suppose the Governor issued an emergency declaration based on her determination that the State was faced with an epidemic of lycanthrope (people turning into werewolves), and that this was “a highly contagious and potentially deadly disease”. (And the Governor has experts who support this opinion.) Should the court say, We don’t believe that’s a real thing? Should the court take evidence on lycanthrope and make a determination whether it’s real or not? Or should the court defer to the Governor’s determination that an emergency exists?

[Dilan Esper]

There's an old maxim of jurisprudence that holds that "you don't need a weatherman to know which way the wind blows".

In other words, if the Executive really is a madman (I don't mean in the rhetorical sense in which partisans often use the term these days, but an actual "all of us, Republicans and Democrats would agree, madman" madman, that Executive would probably face swift removal, but I would also say that a court would probably find ways not to enforce completely stupid and unjustified orders. Perhaps some facts are so obvious that they can actually be judicially noticed, for instance.

Or perhaps you can argue that Korematsu was such a case and the judiciary failed. Which is terrible of course.

But in the real world, the situations you are going to actually get most of the time are "Executive looks at real evidence, which looks very scary, but people disagree as to how scary". And in those situations, the Court is going to take the Executive's determinations as to the nature of the threat as true.

[Dr. Ed]

I'm not so sure there are provisions to remove a state governor.

[Eric VonSalzen]

Dear Dilan, I think the weatherman maxim comes from, or at least was popularized by, your namesake Bob Dylan.

But we agree, I think, that a court considering a challenge to an "emergency" declaration should not enforce it if it finds that there is no emergency. So how does the court know that? I suggest that it is not necessary for the court to "find ways not to enforce" an order based on a false "emergency". The traditional way courts make such determinations is a trial or other form of evidentiary hearing, or if the evidence against an "emergency" is weak or absent, something akin to summary judgment. If the court didn't do that in this case, it should have.

[Dilan Esper]

No, it shouldn't have.

Because in your hypothetical you don't need a hearing.

Indeed that might actually be the law. If it is so obviously true that the government is full of it that you don't need a hearing, then and only then you can reject the government's finding.

As I said though, the most troubling case by far is Korematsu.

[Eric VonSalzen]

Fortunately, Dilan, American courts mostly act (or at least pretend that they act) according to my standard (proof before judgment) rather than yours (I'm a judge, don't bother me with your proof -- I know the truth!).

[David Nieporent]

Most of your complaints are extra-legal (having no support in current doctrine), but I do want to specifically tell you that no court will ever adjudicate the issue of whether public health experts in the government are wrong about an epidemic.

I would amend that to say that no court will ever adjudicate that issue during an epidemic. Significantly after the fact, if someone is bringing a claim for damages rather than injunctive relief, a judge may be willing to entertain the argument.

(I would question why it's any more outside the competence of the judicial branch than, say, to decide whether a surgeon committed malpractice.)

[Dilan Esper]

I agree with your amendment.

But it is more outside the competence than a single surgery, because we are talking about a whole bunch of projections and models plus thorny policy issues.

[Publius419]

I note that FEDERAL courts have no difficulty questioning the merits of an 'emergency declaration' when reviewing complaints filed in and reviewed by both complainants and courts hostile to President Trump.

[Sarcastr0]

To asseverate that the plaintiffs’ position is “without merit” is intellectual claptrap.
No, the decision, and its reasoning, is what is without merit.

I like the 'you're asseverating badly. Now THIS is how you asseverate!'

As for the idea that the Constitutional text contains no exigencies therefore no exigencies exist, I'd point you to a whole bunch of 4E jurisprudence. And also common sense - Natural rights are of secondary importance if you're dead.

Of all things, epidemics - a kind of limited time slow moving disaster requiring coordination and punishing the existence of free riders harshly - is exactly when the legitimacy of governmental use of force is at it's zenith.
Not just in the US, everywhere.

[Libertymike]

You are free to point me to such jurisprudence and chances are I have read a good deal of it. Chances are I would point you to the flawed rationales employed by the courts in reaching their decisions.

Common sense - justifications for sweeping emergency declarations are of no comfort if you have lost your job or your business because somebody played chicken little.

Given how poorly government performs in disaster situations, i.e., Katrina response, legitimacy is not the word that comes to mind.

[Sarcastr0]

https://www.law.cornell.edu/wex/exigent_circumstances

Common sense that the Constitution isn't a suicide pact. Most of the libertarians on here have the perspective to realize that. You don't seem to.

I see on another thread you think rationality is male, and emotionalism is female. I'd note that here you seem to be getting a bit feminine in your arguments...

The government has lots of areas when it should do better (I'd note Katrina and Puerto Rico were both Dem areas during GOP administrations), but it always performs a helluva lot better than the free market in a disaster.

[Publius419]

"Natural rights are of secondary importance if you’re dead." A convenient assertion for tyrants. You forget that their lives is what the Founders pledged in order to secure their natural rights.

[David Nieporent]

Second, there is no language in the First, Second, Fourth, Fifth, or Ninth Amendments that supports the proposition that the rights to be protected thereunder are subject to suspension due to the declaration of an emergency by a governor or other public sector actor. If the framers, and more importantly, the ratifiers, had intended to subject the rights of speech, assembly, keeping and bearing of arms, etc. to suspension during emergencies, real or imagined, they would have so said. They didn’t.

The framers didn't apply those amendments to the states at all, so the states did not need to suspend them during emergencies.

[librarian]

Why can't the court allow the congregates to quarantine themselves at the church?

[Eddy]

I don't see any but the most eccentric judges striking down these sorts of decrees. These judges are affected by the same concerns as anyone else, and they're not going to want to be responsible for hastening the spread of an officially certified world pandemic.

[Libertymike]

This is a genuine case of judicial activism.

[Dilan Esper]

Right.

It seems to me that these situations are where the arguments in favor of judicial restraint are at their strongest. Yes, we don't want the courts to, e.g., uphold another Korematsu or something. But judicial authority is just at its absolute weakest in these situations. For one thing, policymakers may just ignore adverse court rulings and create a legitimacy crisis. And for another, as you imply, judges really aren't in a position to do the science here and if you get it wrong and strike down a necessary policy, there can be a lot of blood on your hands.

[Eddy]

I'm just predicting, politically, what judges *will* do - that only a few quickly-overruled eccentrics will interfere with measures justified in the name of anti-Coronavirus.

[Libertymike]

Fiddlesticks. You don't have to "do science" to know that there is no factual basis to support an emergency declaration.

Rule by credentialism is not for a free society.

[Dilan Esper]

"Fiddlesticks. You don’t have to 'do science' to know that there is no factual basis to support an emergency declaration."

Really? You think this is simple? Anyone can figure out whether the epidemic will spread, to where, how many will be put at risk, and how well distancing regulations will work?

It's not.

"Rule by credentialism is not for a free society."

Politicians rule us. Elected officials. They CONSULT credentialed experts, as they should, because politicians are generalists and don't know all the answers.

What's funny though is you seem to think rule by unelected judges who have no expertise is more "free".

[Libertymike]

What's funny is that you repose confidence, faith, and trust in the politicians that think they can crater the economy, their chicken little advisers, and the unelected judges who rubber stamp such decisions.

[Sarcastr0]

So where do you get your facts, if not from experts?

[Stephen Lathrop]

Sarcasto0, it's rationalism.

You start with axioms, and you reason your way to the facts from there. Vulgar libertarians accept no other method.

Also, note the corollary. Facts which embarrass the axioms are contrary to reason, and thus untrue.

It's a very sturdy system. Nearly impervious.

[David Nieporent]

For one thing, policymakers may just ignore adverse court rulings and create a legitimacy crisis. And for another, as you imply, judges really aren’t in a position to do the science here and if you get it wrong and strike down a necessary policy, there can be a lot of blood on your hands.

In fact, we have a real world example of this. The day before the Ohio primaries last week, DeWine tried to postpone them, and a trial judge actually did reject his request. And DeWine essentially said, "John Marshall has made his decision; now let him enforce it." (DeWine did ultimately at the 11th hour get a higher court to bless his decision, so there was at least a patina of legitimacy. But the point is that he was going to ignore that order regardless of what the lower court said.)

[Dilan Esper]

I think the result is right, but one question about strict scrutiny. Strict scrutiny, taken seriously, requires a least restrictive means analysis. And the burden of proof is on the government.

So if you really analyze these things under strict scrutiny, you would need to analyze if there was any less restrictive alternative that would control transmission of the virus. And that, it seems to me, leaves open all sorts of arguments.

[librarian]

Like requiring all the congregates to wear PPE? The government having on a zero-risk policy for any group wanting to gather seems excessive.

[Publius419]

And yet, government activity still goes on; its workers exempt.

[tkamenick]

Yeah I don't get this either. How is it the least-restrictive means when you still have portions of the state with no known cases? If the government has no evidence that the virus is in City X, what justification is there for banning gatherings in that City? Banning travel to that City, maybe. But within the City?

[Beldar]

A rigorous and persuasive analysis, Prof. V. Thank you for sharing it.

[Publius419]

More accurately, a thoroughly self-justifying analysis of lawyers by lawyers.

[Libertymike]

The NH court's reliance upon Avino is misplaced in that the plaintiffs there did not attack the underlying factual and legal assumptions that there was a genuine emergency situation in the wake of Hurricane Andrew, that the governor had the constitutional authority to declare an emergency, and to impose a curfew. Rather, the plaintiffs plead that the curfew order should have contained some exceptions.

The plaintiffs in the NH case flat out contested the factual basis for the emergency declaration and mounted a myriad of facial attacks on the constitutionality of the emergency declaration. In Avino, the plaintiffs did no such thing.

In Avino, the court does not cite the text of federal constitution or the Florida constitution in support of its ruling. The court also does not advert to any provisions of either constitution authorizing it to concoct a doctrine that subjects rights to suspension if the governor declares an emergency.

[Publius419]

They would have been better served to have filed in federal court.

[DWB]

Volokh justifying tyranny -- shocking!

[deg_ree]

Common flu is "a highly infectious and deadly disease", according to World Health Organization, it kills about 650 thousand people every year. Why not "prevent the spread of it" with an executive order banning gatherings until the flu doesn't exist anymore?

[Publius419]

Indeed. Similarly, motor vehicles cause the slaughter of 50,000 Americans every single year. Clearly, there is a vehicular 'emergency.' Speed limits must be reduced to school zone speeds, i.e., 20 mph, nationwide on all roads. It's for the children.

[Armchair Lawyer]

I think you make a solid point...these types of total and utter bans on assembly really do greatly impede the right to peaceful assembly. And the resulting argument the court uses isn't enough. It should fall under strict scrutiny.

What if, for example, the church had an assembly with everyone in level C Hazmat suits. That would comprehensively limit the spread of the virus, yet still violate the assembly ban.

https://www.dgdeclaration.com/different-hazmat-suit-levels/

[Eugene Volokh]

Armchair Lawyer: I'm fine with hypotheticals, but they get better as they get more factually plausible.

[Bob from Ohio]

Totally unsurprising. No judge is going to overturn the executive in this situation, nor would such a ruling survive a quick appeal.

[Publius419]

Unless the 'emergency' is declared by President Trump pursuant to his statutory authority, in which case, it will be enjoined, nationwide, by a hostile district court in record time.

[Dr. Ed]

At least he is no longer talking about closing the state borders and isolating Maine.

[Eugene Volokh]

Can you elaborate a bit on that? I couldn't find any reference to the Governor's trying to close state borders, and I found one to him stressing that he wouldn't and couldn't:

Sununu noted that this is not an order to shelter in place, something he said he does not have the authority to do. He said no one's prevented from leaving their homes, transportation isn't shutting down, and the state's borders are not closed....

"No governor can shut down their border," Sununu said.

[Publius419]

On what basis, distinct from the basis on which his present actions are imposed, is Gauleiter Sununu prohibited from shutting down borders or imposing 'shelter in place' orders, which gauleiters around the nation have had no trouble finding alleged legal/constitutional authority for?

[Doug Huffman]

Judge Andrew Napolitano asks, “ What good are constitutional rights if they are violated when Americans get sick?”

https://www.washingtontimes.com/news/2020/mar/25/what-good-are-constitutional-rights-if-they-are-vi/

What good are rights violated when society gets ‘sick’, in re RTKBA

[Publius419]

The court's ruling and perspective are based on NO similar situation, but are completely 'novel.' In EVERY cited example, states were dealing with complete breakdowns in civil order due to disaster. That is CLEARLY and facially not the case here. In EVERY previous example of epidemic, it is the SICK who are confined and isolated so that the WELL can continue on. Never before, since 'outbreaks of witchcraft,' has there been so hysterical a reaction to an unseen phenomenon. Indeed, the present hysteria bears many similarities to previous hysteria over witchcraft.

Since this ruling, the governor has seen fit to limit assemble to 9 or less (10 being the Old Testament requirement for a minion or minimum number to form an assembly). Apparently, baseball teams are in favor but church congregations are not. Gualeiter Sununu has seen fit, without constitutional warrant to suspend such rights as are inalienable, to destroy the lives of our citizens and eat out their substance. Under similar previous circumstances, remedial action by the people was appropriately taken. There is NO assurance that such onerous restrictions could not be imposed permanently since disease is all around us and the seasonal flu is only a few months away and threatens to kill several times more. The judge's 'reasoning' is establishmentarian madness.

[Publius419]

Similarly, with this precedent where no there has been no tangible 'disaster' to justify it, no breakdown in the rule of law to warrant emergency intervention, how long will it be before some clever 'progressive' governor asserts that the 'facts' are clear based on 'experts' that climate change is an 'emergency,' and that, since we have less than 12 years left to survive, prudence necessitates restrictions on private travel, non-compliance economic activity, and, worst of all, climate-denialist propaganda. You really think this is not a dress rehearsal for something?