Are stay-at-home orders constitutional? Experts have questions

Gov. Gavin Newsom. AP photo.

BY ELAINE GOODMAN
Daily Post Correspondent

State and county department orders for residents to shelter at home to curb the spread of the COVID-19 respiratory illness are fueling debate over whether the measures are constitutional.

States have police powers under the U.S. Constitution that give them authority to protect public health, safety, and welfare, scholars say. Still, sweeping measures that keep residents at home for extended periods could face legal challenges, some contend.

The ACLU of Northern California said it is monitoring the issue.

“The shelter-in-place orders that have been issued for the entire state of California are clearly an enormous and almost unprecedented curtailment of our individual civil liberties,” the organization said in a statement. The group noted the measures’ “overwhelming support” from public health experts “in support of our collective well-being.”

Six Bay area counties — including Santa Clara and San Mateo — issued an order last week directing residents to shelter at home for three weeks starting March 17 as a way to slow the spread of the coronavirus. Exceptions are allowed for “essential” activities such as getting groceries or caring for a family member. And residents can go to work if their employer provides essential services.

The orders ask sheriffs and police departments to “ensure compliance” with the restrictions. Failure to comply would be a misdemeanor punishable by a fine, imprisonment or both, according to the orders.

Gov. Gavin Newsom on Thursday issued a stay-at-home order for residents, effective immediately and without a stated expiration date. It includes exceptions for residents to go out and get necessities such as food or prescriptions, and for those who work in one of 16 so-called critical sectors.

Newsom said that local officials may enforce their own public health orders that are stricter than the statewide order.

Constitutional right to assembly

The First Amendment of the U.S. Constitution guarantees freedom of religion, freedom of speech, freedom of the press, the right to assembly and the right to petition the government.

Even though the social distancing measures being imposed on the public would seem to impact the right to assembly, some are predicting that the measures would stand up in court.

James Hodge, an Arizona State University law professor, pointed to the government’s broad powers during a public health crisis. Lawsuits would only have a chance of success if they’re challenging “a truly egregious practice,” Hodge said, according to an article in ABA Journal, an American Bar Association publication.

Another law school professor drew a distinction between the quarantine of an infected person and the widespread stay-at-home orders being issued in the Bay area. The latter will likely face a court challenge, said Lawrence Gostin, a professor who specializes in public health law at Georgetown University.

An “en masse” quarantine or a lockdown impinges on “the most fundamental constitutional rights and the right to freedom of movement, the right to freedom of travel,” Gostin said in an interview with National Public Radio.

In contrast, a quarantine order for someone with COVID-19 who is a risk to the public would likely seem more justified, he said.

Enforcing quarantines to stop the spread of disease would likely be considered an appropriate use of a state’s police powers, according to Damon Root, a senior editor who focuses on law, politics and history at Reason, a libertarian magazine.

The key questions are whether an order serves a genuine public health or safety purpose; and whether the order is the least restrictive way to accomplish that purpose, Root said in an article published last week.

No expiration date

Another issue is how long the order lasts.

“An emergency measure that was perfectly justifiable yesterday may become constitutionally suspect tomorrow,” he wrote. “Things change and it is paramount to return to a normal footing as soon as the crisis has lessened or passed.”

Harvard Law School Professor Glenn Cohen said there have been a number of cases on public health and states’ police powers, but the cases are old and the law on the issue is “vague and uncertain.”

Governments taken to court over their coronavirus orders would need to show a compelling reason for their action and that their measures were not overly broad, Cohen told Stat News, a medical news website.

Local officials said they aren’t expecting to be issuing citations regarding the public health orders anytime soon. In a frequently asked questions article on the coronavirus, the city of Palo Alto said criminal enforcement of health orders would be an “absolute last resort” for the police department.

10 Comments

  1. The bottom line is that politicians like Newsom feel their right to order us around exceeds any rights we have guaranteed to us by the constitution. They know we won’t fight back because their propaganda has made us fearful.

  2. I agree. Although right now it is about public safety. The problem is that the mandate is overly broad and unlimited for now. An example is the closing of the beach parking lots. The one I use is empty most of the time this time of year. I like to surf alone, so no problem social-distancing. If crowds come on nice weekend days, the beach staff could close the lots when they get too busy and remind people to keep their distance. But with this full day, every day closing, people will just jam up other streets and parking lots. PS- And, just to be petty, how about refunds or extensions for the folks who bought parking passes from Pacifica?

  3. So now we let the government pick and choose when they can make people stay home? Sorry this is a slippery slope. This is how we lose our freedoms. All in the name of safety. We don’t shut the country down during flu season. Well, maybe we do from now on, then maybe we shut it down because of mass shootings then little by little your rights are eroded.

  4. I live in Maine and our Governor closed ten areas of which one is Fort Baldwin. Fort Baldwin is never busy because it’s basically unknown and the parking lot can handle at most 10 cars, although I’ve never seen more than a handful.

    My point is our leaders are treating us like children. The Constitution isn’t something to be taken lightly and closing anything in a state of fewer than a million people (it’s still winter here and we are getting snow tomorrow) who typically practice social distancing nine months of every year is suspect.

    California too has rural areas and treating the entire state like LA is not just dumb it’s a violation of the first amendment and various SCOTUS rulings.

  5. While everyone is in a panic about the coronavirus (COVID-19), there’s an even deadlier virus many people are forgetting about: the flu.
    Flu season is hitting its stride right now in the US. So far, the CDC has estimated (based on weekly influenza surveillance data) that at least 12,000 people have died from influenza between Oct. 1, 2019 through Feb. 1, 2020, and the number of deaths may be as high as 30,000. The CDC also estimates that up to 31 million Americans have caught the flu this season, with 210,000 to 370,000 flu sufferers hospitalized because of the flu virus.
    https://www.health.com/condition/cold-flu-sinus/how-many-people-die-of-the-flu-every-year

    Everyone gets sick when they get the flu…That is not the case with COVIOD-19. Most people do not even know they have it.
    And nothing got shut down because of it…
    Also, these unlawful lock downs and forced business closing violate your rights.
    Specifically the 1st, 5th & 14th amendments .
    If your rights can be taken away by politicians that fold to the media mob, they really aren’t rights are they.
    Stalin & Mao must be smiling.

  6. “even deadlier virus”

    Even though every metric available says that the CFR of COVID-19 is worse than the seasonal flu? Just because it’s killed more, because it’s had more time to establish itself, doesn’t make it deadlier. The potential for viral pneumonia is significantly higher with Coronavirus compared to influenza virus.

    And no, most people who get COVID-19 aren’t asymptomatic. They do exist, but it isn’t the norm. And when the WHO and CDC say “mild cases”, what they mean are cases that don’t require medical intervention. But most cases are rather severe compared to the flu.

    I won’t speak to the whole Constitutional aspect as I probably agree with you there, but don’t be fooled into thinking this virus is just the common cold. https://www.youtube.com/watch?v=4J0d59dd-qM

  7. Tyrants always demand that we surrender our freedom for the sake of safety. These governors who act like tyrants should lose their job in the next election. I wonder if the citizens in our states today would have risked their lives to gain our freedom as those who were inspired by Patrick Henry did.

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