Peer-Review Politics

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“Militia” groups protesting orders show the influence COVID-19 has had in the US. Many struggle to feed their families and may not have jobs when this ends. The realities are grim. I cannot imagine the pain that drives them. Still, the arguments against the powers belonging to a governor remain thin.

Emergency actions have limited personal freedom, but that is not automatically against constitution. The Harvard Law Review states:

“Rights limitations are typically permitted when they are narrowly tailored to their intended goal… because rights are never absolute, it may not be necessary to declare a constitutional emergency: government can combat crises through law, as long as any restrictions of civil liberties are necessary and proportional.”

Our system, a Federalist one, gives the federal government only the powers stated in the Constitution. The 10th Amendment preserves all powers beyond that for states and the people. Remember, the authors wanted to avoid a monarchy, so they spread power throughout the country.

The way our country is structured means that public health responses happen mostly at the state or city level.

Measures within the state’s power using existing legal precedent:

Measures that flirt with the legal limits:

Measures listed as within a state’s power have traditionally been upheld, and do not conflict with the Constitution, provided they are not arbitrary and apply equally. States possess “policing powers” to enact statutes and regulations to protect public health. This is not “police” like law enforcement but “police” like the state may police the public’s health.

They may not target a certain subgroup or be discriminatory.

The police power is the right of the state to take coercive action against individuals for the benefit of society.

“The police power is very broad, encompassing not only traditional public health, but environmental law, and any other area where the government acts to protect health and safety. The Constitutional roots of the police power are deep. The colonies were ravaged by communicable disease. There was a yellow fever epidemic raging during the writing of the Constitution…It is not surprising that the Constitution, shaped in this environment, would grant the state great latitude in enforcing laws to protect the public health.” — (Richards, 1999)

Outbreaks have a notorious history of providing plausible deniability for discriminatory behavior. In the early 1900s, public health measures intended to stop the bubonic plague that might have otherwise been licit were unfairly applied to Chinese immigrants. The discrimination, and not the restriction, rendered it unlawful.

States have broad authority — shockingly broad if I’m being honest, though I’ve since come to see why — over the business and school operations. The measures cannot be inequitable and must be the least invasive way to achieve the end. Emergency declarations permit governors to access funds and powers not ordinarily accessible to them, and some of that power is extreme. These have been expressly designated to them by Congress in legislation.

To be clear, in an emergency the state orders may preempt local orders, but the federal government cannot order widespread closures or openings of businesses or schools.

The federal government has limited power to order social distancing, though it can order closures to prevent interstate spread of disease. It may not order states to adopt them, but it can issue recommendations and guidelines and may, sometimes, reward states following the recommendations with funding. This may not be coercive.

This famously bore out when the ACA rolled out under the Obama administration when it took funding from states that did not expand coverage. That was coercive. They rewarded states that implemented with additional funding rather than penalizing those that did not. That is licit.

Certainly, inviting governors to all come to meet and strategize is far from authoritarian, legally permissible, and advisable. If the federal government is at odds with a governor, the federal government has limited power and may not outrank the state’s elected official per the Tenth Amendment.

Do these bans violate First Amendment protections of free speech, religion, and assembly?

Short answer: no. These bans are content-neutral and upheld by courts when supported by “compelling government interests.” Congress designated many of these powers to state leaders and though they infringe on our personal rights, it is not a Constitutional principle that these rights are absolute. It is also not a violation of internationally accepted human rights:

“No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.”

International Covenant on Civil and Political Rights

You may own a gun, but you may not shoot other people. Individual rights always end when they affect the safety of others. This famously played out when a man refused a vaccination in Jacobson v Massachusetts, a 1905 US Supreme Court decision where the state’s power to order a general vaccination program during an epidemic was firmly upheld.

“The liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly free from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members.”

Jacobson v. Massachusetts, 197 U.S. 11 (1905).

No legal basis exists for people to object to licit emergency powers and the courts have and will side with the state if the measure used is the least invasive measure capable of achieving a narrow goal and if science shows that this is the best way to mitigate that threat. This virus poses a significant threat that is very real and while it is not a bioweapon in the sense that anyone engineered it, someone could use it in a way that threatens others.

Personal liberties are “and always have been, subject to society’s interests.” — Judge C. M. Murray [April 30, 2020]

Those who intentionally infect others may face charges, including federal bioweapon charges. Similarly, people who spread HIV face charges, but spreading COVID-19 could have national security implications. While it may be possible for someone to object to the constitution — many object to the second amendment — these are the laws unto which we are all beholden in this unprecedented and uncertain time.

We will resume our normal lives when this is over, and though it does not feel like it now, every sign is that the economic hardships now are much less than those that would arise were the virus to run its course.

Public health protections limit our personal rights and they are not pleasant, but they are essential to protecting our society and ratified in the bill of rights. Our founding fathers were much wiser than we knew. They knew society allows us to survive and live a better life than any of us could alone and that we should be free to pursue happiness within that society.

Every benefit has a cost. The benefit of society comes at the price of sometimes having to do what we dislike or do not think is best, because it serves the whole of society. Just as our founding fathers did not support an unjust ruler, they did not support the unjust neighbor. That has been a part of the fabric of our nation from its birth, and we are lucky that we so infrequently encounter outbreaks that most Americans remain unaware of the legal specifics.

The people have and always will be a “WE.”

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  1. McCourt, A. 2020. “Legal and Policy Issues in COVID19 Response.” (May 2, 2020).
  2. Colgrove, J., & Bayer, R. (2005). Manifold restraints: liberty, public health, and the legacy of Jacobson v Massachusetts. American journal of public health, 95(4), 571–576.
  3. Gostin LO, Hodge JG, Wiley LF. Presidential Powers and Response to COVID-19. JAMA. 2020;323(16):1547–1548. doi:10.1001/jama.2020.4335
  4. Mariner, W. K., Annas, G. J., & Glantz, L. H. (2005). Jacobson v Massachusetts: it’s not your great-great-grandfather’s public health law. American journal of public health, 95(4), 581–590.
  5. Richards, Edward P., and Rathbun, Katharine C., “The Role of the Police Power in 21st Century Public Health” (1999). Journal Articles. 371.

Further Recommended Reading:

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