Liberties in tension

As the United States continues to battle the coronavirus, Americans in 41 states are under orders to stay home. Every state and the federal government have declared an emergency, and enforcement efforts are escalating.

Four small towns in south Texas, for example, have announced police patrols and checkpoints. Edcouch city manager Victor De La Cruz said officers would cite those who cannot provide written documentation that they are an “essential employee.” In one instance Edcouch police escorted a citizen who was picking up prescriptions to ensure that he returned home immediately after the errand.

The nation’s state governors have issued over 760 executive orders pertaining to the coronavirus. Those orders, limiting citizens’ movements and ability to meet together and conduct business, raise a significant legal question: What are the constitutional limits of governmental powers during an emergency?

In Washington state, Gov. Jay Inslee last Thursday extended a stay-at-home order to May 4. Washington statute permits the governor to proclaim a state of emergency without consulting the Legislature for up to 30 days. During an emergency, he may impose a curfew, suspend state laws, and ban gatherings in open spaces provided the restrictions do not “conflict with the rights, under the First Amendment, of freedom of speech or of the people to peaceably assemble.”

“It’s very clear that state governors have, as a matter of federal constitutional law, extraordinarily broad authority,” said Joel Ard, an attorney based in Washington state. The Bill of Rights has never been interpreted to be absolute in its protections, he explained: “It has always been understood that state governments have the authority to quarantine to protect public health.”

However, Tony McDonald, an attorney in Austin, Texas, is concerned about the long-term precedent the latest executive orders may set. He says that prohibitions on the suspension of laws—a common feature of many state constitutions—are at the core of our constitutional order: “Restrictions on the king’s power and authority to suspend laws were the very first element of the English Bill of Rights from the 1600s.”

Dozens of governors and the Trump administration waived various laws in March. New waivers fast-tracked the licensing process for medical professionals and allowed retired healthcare professionals or medical students to begin working. Others permitted restaurant delivery services to offer alcohol or eased trucking regulations.

U.S. officials are also eyeing surveillance techniques in the coronavirus fight: The Washington Post reported that Google, Facebook, and other tech companies are in talks with the federal government about sharing users’ anonymized, aggregated mobile phone location data with federal officials. Such information, which Google and other data analysts have already begun to publish, reveal to what extent Americans are abiding by stay-at-home orders.

Public restrictions are not new in the United States. During the 1918-1920 influenza pandemic that killed half a million Americans, municipalities removed communal drinking cups in public spaces, closed dance halls and salons, and sometimes quarantined the households of the sick.

Nancy Bristow, author of American Pandemic, said that officials during that time didn’t restrict the movement of healthy citizens. “But public gatherings and events were frequently prohibited, and many public spaces were closed, such as schools, bars, and restaurants.”

Consumed with the war effort and not wanting to cause alarm, President Woodrow Wilson never publicly mentioned the pandemic, and Congress passed no legislation addressing it.

Today, a dirty secret of U.S. emergency powers is their longevity: Thirty-one national emergency declarations continue to be renewed annually, including declarations regarding the 1979 Iran hostage crisis and the 9/11 terrorist attacks.

But the courts would likely overrule an emergency order that restricts American liberties indefinitely, said Ard: “It almost certainly does have to be exercised in a way that’s rationally related to the problem they perceive and time-limited.”

Attorneys say that a growing number of lawsuits, including First Amendment suits in at least five states, could soon become a deluge.

McDonald is unsure they will meet success. “Courts have proven throughout history that they are unwilling to confront the executive in times of public emergency,” he said.

“Is this situation unlawful? I’m not sure.”