The Coronavirus is driving a fair amount of public legal analysis. This is seemingly driven by the amazing variety of governmental reaction to the pandemic, national, state, and local. It has been intriguing to hear the various interest groups and experts opine on the limits of governmental power and authority in the midst of this pandemic.
Before Statler and Waldorf get too wound up, this post is about the law and the U.S. Constitution. Workers' compensation is a statutory construct built upon the foundation of both American's fundamental rights and our grant of authority to our governments. Some may that as too tenuous a connection ("What does this have to do with comp?"), but if so click the back button, or click here for pictures of cats.
News stories abound on the topic of individual rights. One of the first to catch my attention was the Rhode Island police and National Guard pulling over vehicles with New York license plates. This story broke in late March and described the police presence regarding "highways, bridges, and bus stops." There were even reports of these state officials going door-to-door attempting to locate New Yorkers fleeing the viral invasion.
Perhaps to reassure New Yorkers, the police in Rhode Island also made the national news for arresting three golfers from Massachusetts. They had apparently driven to a local Rhode Island McDonalds where they switched to a car with Rhode Island plates in order to appear local when visiting a golf course. Unfortunately for them, "employees at the McDonalds McDonald’s ratted them out." ("would have got away with it too if it wasn't for these blasted kids and their dog?")
In a similar maneuver, police in Dare County, North Carolina blocked the bridges providing access to the Outer Banks. The island community is said to have no cases of the Coronavirus and seeks to keep it that way. Only "full-time residents" may "come and go." That has caused some dissension among people who own homes there, and pay property taxes there, but are not "full-time." They have been denied access to their second homes and allege this violates their rights to travel and their privileges and immunities. Some of them have filed federal lawsuits regarding the deprivation of access to their property.
A Mississippi mayor (Greenville, MS, the seat of Washington County) has allegedly issued an executive order "that orders all church buildings closed for in-person and drive-in church services." If you drive to a church in that town and sit in the car with your family (with the windows up), the news claims you will face a fine. Perhaps it is the size of the parking lot, the number of vehicles, or more? Concluding that the city there "appears to have singled out churches," the United States Attorney General reportedly filed a court notice to support the churches challenging the ban. Some point out that cars are similarly gathering at the local Sonic with windows open, yet not facing a similar threat of fines.
A similar "ban on all (religious) services" was issued in Kentucky according to ABCNews. This applied to those who would remain "in their cars to worship." A judge there quickly entered a "temporary restraining order" preventing Louisville, Kentucky from enforcing the ban on drive-in churches. There is perhaps some explanation for these efforts against drive-in church services, but I have yet to hear such an explanation.
In Pennsylvania, a teenager sought relief from the "stay at home" order issued by its Governor. She recently took "a drive just to get out of the house for a while on Sunday evening." She was stopped by not one, but two, Pennsylvania State Police cars. They allegedly first accused her of the time-honored "your taillight is broken," but that turned out to be untrue. As an aside, I will never forget being pulled over on the Pennsylvania Turnpike years ago for driving 58 miles an hour in a 55 zone. That brings back memories of Sammy Hagar ("I can't drive 55"), and memories of a different time. This young lady has reportedly pled "not guilty and intends to" explain her defense to a judge.
In New Jersey, "A group of gun rights advocates" has filed suit over the state omitting gun stores from the list of "essential retail businesses." Coincidentally, the plaintiffs noted, the government's "online background check portal" has allegedly been offline since that decision. Without the portal, the sale of a gun in that state seems improbable at best. The lawsuit alleges that the closure of this category of stores "violates the Second and 14th Amendments."
In Michigan, an executive order limiting people's activity has striven to limit shopping to "necessities." The drafting of that has led to some strained interpretations regarding what can and cannot be sold during this time. One store reportedly interpreted the Governor's order as precluding things like child car seats, concluding they were not "essential." WXYZ Detroit reported that this has been cleared up, perhaps, but the implications are intriguing. We already know the government can force you to buy what you do not want, National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). Of course, it can often tell you what you cannot buy (think Heroin, machine guns, etc.). Consider the government haphazardously regulating or impairing when you can or cannot buy simple consumer goods.
A former state police officer was arrested and handcuffed in front of his child in Brighton recently. His crime? He was on a nearly deserted softball field, throwing a ball with his six-year-old daughter. The video shows that it took three Brighton police officers to effectuate the arrest. The whole Coronavirus threat has led some police forces to make public announcements that they will not enforce the law, but will only respond to "essential calls for service. It is difficult to imagine a father-daughter game of catch equating to such a threat. ABCNews reports that the police department later apologized for the arrest, and began an internal investigation. The intelligence quotient (IQ) of all three Brighton officers involved in this example may merit investigation.
These are interesting examples of government imposition of restraints in the time of COVID-19. We live in an amazingly free society, though arguably not as free as it once was. There are those in our society that lament almost any government regulation. Others are unfazed by the government limits we face. Does the United States Constitution protect our "unalienable" rights even in times of pandemic or other urgency? You see, some would remind us that the Declaration of Independence (a list of grievances with the King's rule) notes:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights."
Unalienable means "indispensable," "natural," and "fundamental." These rights are strong, and we possess them because of our very existence. We believe that no government gave them to us, and therefore no government can take them away. We, from the exercise of our rights, empowered our governments; those governments did not grant or loan us these rights. It is the people, in our American paradigm, from which all power and authority flows.
That does not, or at least has not, mean that government cannot impair such rights. In fact, the government has done so on numerous occasions. To do so effectively, the government faces a significant burden of proof, however. We refer to this as "strict scrutiny," a tool used by the Supreme Court of the United States to measure the appropriateness of government action. It is one of the "standards of review" (the other two primary standards are "rational basis" and "intermediate scrutiny") that the Court relies upon as a road map through difficult analyses and challenges.
This is the standard employed when fundamental rights are threatened by government action. Under "strict scrutiny," the courts will presume that government action is unconstitutional. From that premise, the government will have the burden of making two demonstrations in order to justify its action of impairing fundamental rights. The government will have to show that there is a "compelling governmental interest" being furthered by the impairment and that "no less restrictive alternative is available." Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 357 (1978). This is a significant burden and rightly makes the government prove that it is compelled to constrain our fundamental rights.
One need read no further than Korematsu v. United States, 323 U.S. 214 (1944)(internment of Japanese Americans) to understand that government may legally impair fundamental rights. That is not the question. There is no doubt that Americans have fundamental rights; we were born with them and owe them to no government grace or grant. That is not the question. The question in the coming days will be to what extent the rights and powers conflict and how courts will resolve those points of friction. Government seeking to protect one or many, and individuals seeking to prevent government interference.
There will be arguments regarding potential harms and concerns. There may be arguments of legitimate government objectives, trivial individual impacts (one 19-year-old on a Sunday drive), and the specter of resulting "substantial effect" from an aggregation (feared or real) of activity. The Courts have already concluded that the threat of many acting in trivial personal ways presents a possible aggregate of activity that justifies penalizing even that singular trivial violation. See Wickard v. Fillburn, 317 U.S. 111 (1942).
If we can agree a single 19-year-old taking a Sunday drive may have no effect, some will argue, essentially, "What if everyone took a Sunday drive?" If we can agree that a family in their car listening to a radio is not a threat, what if everyone drove in to listen? One national commentator has opined that through these COVID-19 governmental restraints, we are "seeing (the) slow death of civil liberties in the name of public safety." And, he questions whether "we will get it back when this is over." Americans are periodically willing to trade their rights for promises of safety. Perhaps this will be one of those times?
What is likely in all of this is that COVID-19 will not fade immediately from our consciousness following the "reopening" that we anticipate. The disease will fade from the headlines in time. Instances like those cited above will thereafter, in part, continue the longer road that is litigation. In years to come, we may or may not hear news reports outlining how various courts have addressed these conflicts between individual rights and governmental powers. But, how they answer the questions raised by these conflicts between power and rights will be fundamental to understanding our path forward as Americans. Will we find that we can be told that buying a banana is essential, but buying a child car seat is not?
