Increasingly, American governors are turning to broad “shelter-in-place” orders to prevent the person-to-person spread of the coronavirus. These acts follow on the heels of even more expansive “lock-down” steps implemented by the Chinese government to contain the virus. Applying such a broad-brush model in the United States, however, is not possible without deeply damaging the fabric of American life. The broadest versions of such orders violate fundamental constitutional rights, and are ultimately not enforceable in a free and open society.
State leaders are doubtless facing hard choices at this time, as the outbreak spreads through the population and touches members of the public, including public officials themselves. While the COVID-19 pandemic poses a real and significant public health risk, America must work hard to pursue other strategies for addressing the crisis beyond expansive shelter-in-place or lock-down models.
As a command-and-control society, China was able to implement aggressive population containment measures as a means of impeding virus spread. In the tense weeks that followed the initial outbreak in Wuhan Province, other national governments followed suit by imposing their own rigid controls over population movement.
Within the United States, some state governors are now engaging in similar activities. On March 20, New York State Gov. Andrew Cuomo signed an executive order mandating that “one-hundred percent” of the state’s workforce must stay at home, excluding those employed by “essential services.” Cuomo called the order the “New York State on PAUSE plan,” and was quoted in USA Today as saying that the plan “bans all nonessential gatherings of individuals of any size for any reason.” Illinois and California — joined Monday by Oregon, Michigan, Wisconsin and Indiana — likewise implemented expansive “shelter-in-place” type restrictions on movement and gathering.
While such orders attempt to mimic China’s response to COVID-19, the United States operates under a fundamentally different governmental structure — one that places constitutional limits on the powers wielded by state actors, whether or not they are operating in an emergency capacity.
For instance, the breadth of New York’s shelter-in-place order — which bars all “nonessential gatherings of individuals” — poses direct challenges to religious and political gatherings, and curtails the ability of individuals to petition their government by appearing for testimony before public bodies, for instance. The First Amendment, as well as analogous provisions in state constitutions, protect such expressive activities against governmental interference.
While there is U.S. Supreme Court case law that permits certain “time, place, and manner” restrictions on First Amendment gatherings, the kind of comprehensive ban that New York has enacted does not meet constitutional standards, and is not enforceable in a free society. Court challenges to such orders are inevitable. Already, a group of citizen activists and religious leaders are in the midst of challenging certain New Hampshire executive orders that impact political and religious gatherings.
Minnesota’s ‘Chapter 12’ authorities
In Minnesota, Governor Tim Walz has said that shelter-in-place orders are “in the toolbox” he has available to deal with the coronavirus, but has noted that he is not ready to employ such measures as of yet. The “tool box” Walz refers to is largely contained within Minnesota States Chapter 12 — the chapter that deals with emergency management. Some Chapter 12 powers are administrative in nature — such as allocating government resources and expediting certain state agency procedures. Others — such as those found in Minnesota States 12.21 — have a societal impact, and include the direction and control “of the conduct of persons in this state, including entrance or exit from any stricken place.” The governor has relied on this statute, in part, to underpin his executive order closing places of “public accommodation” such as dine-in restaurants.
Minnesota Statutes 12.21 also includes a provision whereby the governor could direct or control “public meetings or gatherings.” Invoking this provision as part of a statewide shelter-in-place order could raise serious constitutional issues, as it would doubtlessly impinge upon protected political and religious activities. In addition, a Chapter 12 order that closes private businesses wholesale — and causes long-lasting economic damage — may run afoul of Article I, Section 13 of the Minnesota Constitution, which states that “private property shall not be taken, destroyed, or damaged for public use without just compensation thereof, first paid and secured.”
In light of the significant constitutional issues that would arise from a broad-brush “shelter-in-place” order, the Walz administration should tread lightly as it reviews additional executive actions to be implemented in Minnesota. The Legislature will also have an important role in the coming weeks, in that it has the statutory authority to terminate “peacetime emergencies” declared under Chapter 12 (from which the governor’s emergency powers flow), or even to alter Chapter 12 itself.
Federal government seeks to expand ’emergency’ powers
State-level activities are not the only government actions raising constitutional issues at this time. Just as it did after 9/11, the U.S. Department of Justice (DOJ) is seeking to utilize the current crisis to expand the powers of the federal government.
As reported by The Hill, the DOJ has asked Congress to provide it with the authority to ask certain district court judges to halt court proceedings during a national emergency (including during natural disasters and episodes of “civil disobedience”), as well as to detain individuals without trial during government- declared “emergencies.” In particular, DOJ’s detention request is a direct challenge to the criminal procedural protections set out in the federal Bill of Rights, which include the “right to a speedy and public trial.”
The political future of the proposals is uncertain at this time and should be tracked closely, as should all other federal executive activity related to the coronavirus pandemic.
Economic and social consequences
In addition to the constitutional issues raised by shelter-in-place or lock-down orders, such directives will create broadly negative economic ramifications by freezing entire sectors of the economy for indefinite periods of time. Small businesses will be the hardest hit, as most small businesses have few capital reserves, and largely depend on current cash flow for survival. Given enough time, even large enterprises will not be spared from the economic damage caused by government enforced slow-downs (which the stock market has been “pricing in” via the market chaos of the past weeks).
Our society’s social support network comes primarily from wages paid by private sector employment. The private sector also generates the tax revenue that underpins government programming, including its emergency management capabilities. As the private sector becomes crippled, the tax base will suffer, which will eventually degrade the government’s ability to support its emergency activities — including the various unemployment insurance funds, bail-out programs, and financial rescue measures that are currently being undertaken. There will simply not be enough government funding available to replace the lost economic activity that will result from extended, state-mandated “shelter-in-place” directives.
If enforced long enough and deeply enough, such directives will magnify our current public health crisis by converting it into a long-lasting and more pervasive economic and social calamity.
There are many steps that can be taken to combat the spread of infectious diseases like the coronavirus, including numerous voluntary practices encouraged by health professionals — practices that have been widely adopted by businesses and other institutions to mitigate spread. Government also has a significant role to play by providing emergency support to the health care system, and by coordinating the testing and analysis critical to tracking the spread of COVID-19. Without a doubt, normal life in the United States will be disrupted for a significant period of time. However, in a free society, that disruption cannot — and should not — include broad- based, government-imposed shut-downs of economic and social life.
Expert voices are raising these concerns and should be heeded. Over the weekend, noted infectious disease researcher Michael Osterholm co-authored an op-ed in the Washington Post, and stated that “a national lock-down is no cure.” In the op-ed, Osterholm and co-author Mark Olshaker wrote that “we can’t have everyone stay home and still produce and distribute the basics needed to sustain life and fight the disease” and that “the best alternative will probably entail letting those at low risk for serious disease continue to work … while at the same time advising higher-risk individuals to protect themselves through physical distancing and ramping-up our health-care capacity as aggressively as possible.”
Minnesota has an innovative, hardy, and compassionate population that will be able to weather this storm. However, if broad “shelter-in-place” mandates are put in place, it will be difficult to capitalize on the resources that private enterprise, nonprofits, and individual citizen volunteers are able to bring to bear on this crisis situation.
Matt Ehling is a St. Paul resident involved with a number of government accountability and transparency organizations. This piece was written and submitted on his own behalf.
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