The Government of Los Angeles County has told its Ten Million residents that, as of today, “All public and private gatherings with individuals not in your household are prohibited.” Although there are exceptions for religious services and protests, this “Stay-At-Home” order is an extraordinary deprivation of people’s freedom. It is on top of a restrictive state-wide curfew and other major restrictions on businesses and individuals. President-Elect Joe Biden has promised various national level restrictions as well. Is all of this constitutional?

No matter how serious the COVID situation is (and there is no doubt that it is extremely serious), the Constitution still limits the power of government. There are at least three important limitations on government power that restrict what it can do: federalism, separation of powers, and individual rights.

Federalism is the constitutionally mandated division of power between the state and federal governments. The federal government is limited to powers that are enumerated in the constitution such as the regulation of interstate commerce. These powers have been interpreted broadly by the courts, which has enabled important federal laws such as the Civil Rights Act of 1964. But they aren’t limitless, and the national mask mandate originally proposed by Biden is probably beyond those powers. He seems to have come to recognize that and now talks about mask mandates that only apply to federal property. 

As a result, state and local governments are where most of the action has been, with the executive branches leading the charge. Michigan Governor Gretchen Whitmer, for example, has aggressively used her executive power to declare both a “state of emergency” and a “state of disaster”. Under this authority, she severely restricted, among other things, access to non-essential medical care.

But states have their own constitutions, most of which separate executive power from legislative power, just as the United States Constitution does. Whitmer was sued by, among other parties, a patient who was prohibited from getting knee replacement surgery. The Michigan Supreme Court ruled that Whitmer’s actions went beyond what state laws such as the Emergency Management Act allow her to do under her own authority. 

Similarly, California’s most restrictive regulations have come from the Governor’s office or county public health officials, not the legislature. The legislative branch is slower moving than the executive branch, so it is understandable why executive officials want to act on their own. But the framers of the constitution had good reason to fear unchecked executive power. Separation of powers is meant to keep any single interest group from gaining too much control over the levers of government power. An order by the Governor of Nevada order imposing severe limits on church attendance while allowing thousands of people to gather in the state’s giant casinos is a good example of what the framers would have feared. As a result, restrictions based on executive, rather than legislative power are more likely to be struck down by the courts. (The Nevada order was upheld by the Supreme Court, but, for reasons explained in a recent post, the result probably would be different now that Justice Amy Coney Barrett has joined the Court.)

Finally, the United States Constitution robustly protects an array of individual rights from both state and federal intrusion. As a result, a federal judge in Pennsylvania recently struck down state executive orders that restricted gatherings, closed non-essential businesses, and directed people to stay at home. Judge William S. Stickman wrote: “the Court believes that Defendants undertook their actions in a well-intentioned effort to protect Pennsylvanians from the virus. However, good intentions toward a laudable end are not alone enough to uphold governmental action against a constitutional challenge. Indeed, the greatest threats to our system of constitutional liberties may arise when the ends are laudable, and the intent is good—especially in a time of emergency.”    

Judge Stickman ruled that the Order imposing limitations on “events and gatherings” of 25 persons for indoor gatherings and 250 persons for outdoor gatherings violates the first amendment, which protects freedom of speech and freedom of assembly. He reasoned that the Order was not “narrowly tailored” to the state’s interest in fighting COVID. Many more than 25 people could be in a store at a given time, but could not be gathered for, say, a campaign rally.

Judge Stickman also struck down the Pennsylvania stay-home-order, which said: “All individuals residing in the Commonwealth are ordered to stay-at-home except as needed to access, support or provide life-sustaining business, emergency, or government services.” He wrote that the restrictions were “unprecedented” and violated the constitutional right to interstate travel, which the Supreme Court has held is protected by the fourteenth amendment’s protection of “liberty”.

A federal appellate court has stayed Stickman’s order pending their review of the constitutionality of the Pennsylvania restrictions. They have not ruled that Stickman is incorrect. They have temporarily allowed the rules to take effect until they rule on them, probably in January 2021.

The bottom line is that the limits of government power to restrict people’s freedom of movement and association during this crisis is unclear. What is clear is that states have more leeway than the federal government, and governors and state officials have more power when the legislature has authorized their orders. 

The question of individual rights is cloudier. The COVID crisis is grave, but the restrictions on people’s freedom are unprecedented. Under the Los Angeles County order, three friends can’t meet in their backyard even if they wear masks and maintain social distance. So the order restricts rights that are the very core of the constitution: privacy of the home and the right to gather with others to discuss issues ranging from personal stresses in these difficult times to whether they should run for public office. 

It’s a difficult balance and various courts may not initially agree. There is a good chance that some of these laws will be argued before the Supreme Court, which tries to make sure that the Constitution is construed the same way across states. For now, the greatest likelihood is that courts will mostly permit these restrictions if they are sufficiently short-term. The Los Angeles order only lasts until December 21st. But it “may be extended or revised as needed.” Should that happen, the courts may well balk at such severe restrictions.

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