When Irresistible Emergency Powers Meet Unmovable Constitutional Standards

Two weeks ago [Constitution Minute, 4/19/20], I summarized several court challenges to state pandemic emergency orders around the country.  There’s been a whole raft of litigation since then.  It’s impossible to keep track of all of it but, tonight, we’ll take a closer look at the legal standards at issue in some of the recent challenges.

Yes, the states have broad emergency powers, but the Constitution is not suspended.  Emergency powers are not unlimited.  Constitutional protections must be observed.  The government must have valid reasons to use health emergency powers in the first place - it can’t act arbitrarily; the health measures imposed must be reasonably designed to achieve health objectives; the benefit must outweigh the burdens placed on people; and authorities must avoid harming people in the process.  Those are the legal standards; now let’s apply them to some of the cases that have arisen in the last two weeks.

The government can’t act arbitrarily.   California Governor Gavin Newsom ordered the beaches closed in Orange County based on some news photos, but he didn’t close any other beaches in the state.  The Huntington Beach city council voted to sue arguing, among other things, the Governor acted arbitrarily in singling out one stretch of shoreline in the entire state for closure, but not other beaches.  The mayor of Newport Beach additionally argues L.A. County closed its beaches a month ago and “every single Los Angeles County beach community has a higher per capita COVID infection rate than Orange County’s open beach communities.”  The Governor’s order singling out Orange County sounds pretty arbitrary to me. 

Second, the governmental interest in exercising emergency powers must outweigh the liberty interests at stake.  This is basic due process analysis.  A judge in Virginia opened one gun range in the state following this analysis.  The judge ruled that citizens’ Second Amendment rights outweigh the state’s interest in protecting health on the facts presented.  In Michigan, the Governor settled a case with a legal foundation by trimming back her emergency orders.  The foundation vindicated the rights of Michigan residents to travel to their summer homes, reopen their landscaping businesses, and use their boats for fishing, among other things.  The foundation had argued the Governor’s orders had trampled on several fundamental rights for no good reason. 

Third, the health measures must be reasonably calculated to achieve a health objective.  It’s hard to see the health objective in ordering people not to attend drive-in church services where they don’t get out of their cars.  A town in Mississippi lifted its ban on drive-in church services after it got sued.  The U.S. Justice Department intervened in the case, saying the town could not single out churches when allowing other drive-in establishments, like drive-in restaurants, to stay open.  In Kansas, a federal court blocked the state from limiting attendance at church services to 10 people.  Congregations must still observe social distancing rules under the court’s decision, but those rules cannot be applied more strictly inside churches than elsewhere, the court said.

In New Mexico, however, a federal court ruled the opposite way, upholding the state’s ban on gatherings of more than five people in places of worship.  The court rejected challenges based on the First Amendment rights of assembly and free exercise of religion.  The judge said the social distancing ordered by the state was not good enough because death rates were still going up despite social distancing.  That bears repeating: the state’s social distancing order was not good enough for this judge.  Talk about legislating from the bench, wow!  Besides, churches have alternatives - drive-in services and broadcasting over TV and the Internet, the judge ruled.

To sum up, states have emergency powers, but the Constitution is still in effect, and the question in all these cases is, in one way or another, whether government has overreached.  Law is the adjustment of competing values and interests and all of that strikes different judges in different ways, as the COVID cases show.   But, at some point, even the most hard-core authoritarians among us will have to admit that the burdens and harms of continued lockdowns outweigh the health benefits to be gained.  Like the scales of justice show, it’s a matter of balance.