Michigan Governor Gretchen Whitmer says she’s fighting a war. And she’s using emergency powers in that fight.
But governors are quickly finding that even emergency powers might have their limits.
“Tyranny has a new name and it’s called a pandemic,” says Robert Muise, a constitutional lawyer with the conservative American Freedom Law Center, and a co-plaintiff in a recent lawsuit the center has filed against Governor Whitmer.
“A quarantine is when you restrict the liberty of people who are sick. And tyranny is when we, you restrict the liberty of people who are healthy,” says Muise.
Muise alleges that Whitmer has violated the First Amendment by banning church services, the Second Amendment by closing gun stores, and the 14th Amendment’s Equal Protection Clause by seeming to arbitrarily allow some places to stay open while banning others. One of his clients is a landscaper whom he says was perfectly capable of running his business while maintaining social distancing.
The American Freedom Law Center has also filed a First Amendment lawsuit against New York Mayor Bill de Blasio, who has banned protests but permits walking and jogging.
“This is a total ban on first amendment activity,” says Muise.
Josh Blackman, an associate professor of law at the South Texas College of Law Houston (and contributor to The Volokh Conspiracy, which is published here at Reason.com), says that while the emergency orders may have been legal early on, they can become less constitutional as new information about the threat level and the effectiveness of the policy becomes clear.
“If the elected branches say there’s some crisis that’s going on, the courts are hesitant to second-guess that,” says Blackman. “But I think that deference only lasts for so long….Measures that might have seemed necessary and proper months ago, now seem, perhaps, [like] overkill. And I think we’re starting to see courts recognize that.”
Blackman points to a recent Texas Supreme Court opinion finding that as the threat lessens the “continued burdens on constitutional liberties may not survive judicial scrutiny.” A federal ruling out of Kentucky struck down that state’s “nonessential” designation of drive-in church services and seriously questioned the constitutionality of the government making such designations at all.
“I don’t think the governor can decide what is and is not essential with any sort of objective measure,” says Blackman. “When we get to things like religion, the right to bear arms, this definition of ‘essential’…[requires more] reasoning to explain why this activity is prohibited than merely saying ‘essential.'”
Blackman says that the most relevant case law regarding the lockdowns comes from the World War II era, when the federal government imposed curfews on Japanese-Americans and later forced them into internment camps.
“Now we don’t talk about those cases because they’re considered really bad,” says Blackman.
The Supreme Court did not uphold the constitutionality of the internment camps, which had shut down by the time they considered the relevant case, but Blackman says that they did uphold the curfews. Blackman warns that times of emergency tend to result in hasty and overreaching legal precedent and fears such an outcome if the Supreme Court is forced to weigh in on quarantines or social distancing laws that could affect the 2020 election.
“Whenever courts decide cases under crunch time conditions without enough time to consider things, the outcomes tend to be pretty lousy.”
So far, governors in Wisconsin and Oregon have had their executive orders nullified by state and county courts who ruled that they weren’t properly reauthorized by the legislature, and Muise’s challenge to the Michigan order is pending in federal court, as is his First Amendment challenge to New York’s order.
Meanwhile, some businesses continue to open despite lockdown orders, local sheriffs increasingly refuse to enforce closures, district attorneys refuse to prosecute, and mobility data shows Americans increasingly moving through the world again as they make their own individual risk assessments.
“Civil disobedience has been one way that we’ve actually made a lot of policy changes here in the United States,” says Muise.
Produced by Zach Weissmueller
Photos: Haircut in Michigan, Jim West/ZUMA Press/Newscom; New Yorkers in park during quarantine, DIGGZY/SplashNews/Newscom; Texas police, John Konstantaras/MCT/Newscom; Michigan barbershop, Kimberly P. Mitchell/TNS/Newscom; De Blasio speech in the park, Anthony Behar/Sipa USA/Newscom; Whitmer on Capitol steps, Andrew Layton/ZUMA Press/Newscom; Supreme Court columns, SIPA/Newscom; Whitmer at podium, Brian Cahn/ZUMA Press/Newscom; Protester in front of Supreme Court, SIPA/Newscom; Masked NYPD officer, Lev Radin/ZUMA Press/Newscom; Armed protesters in front of Michigan Capitol, Joel Marklund/ZUMA Press/Newscom; Protesters on steps on Michigan Capitol, Joel Marklund/ZUMA Press/Newscom; Whitmer giving speech on capitol steps, Jim West/ZUMA Press/Newscom; Officers at the Dallas airport, Jeremy Hogan/Polaris/Newscom; California church service, Will Lester/ZUMA Press/Newscom; Drive-in church service, Luke Townsend/ZUMA Press/Newscom; Whitmer at podium, Andrew Layton/ZUMA Press/Newscom; “End the shutdown” sign, Michael Siluk/Education Images/Universal Images Group/Newscom; Masked New Yorkers crossing bridge, Richard Harbus/MEGA/Newscom; De Blasio with bandanna mask, Anthony Behar/Sipa USA/Newscom; Landscaper pushing wheelbarrow, Mark Hunt/Newscom; Landscaper loading trash can, Mark Hunt/Newscom; Empty strip mall parking lot, Jim West/ZUMA Press/Newscom; Gretchen Whitmer meeting first responders, Jacob Cessna/Fema/ZUMA Press/Newscom; Trump points finger at presser, Polaris/Newscom
Music credits: “Prisma” by Tomas Novoa is licensed from Artlist; “Vuelta al Sol” by Tomas Novoa is licensed from Artlist; “Assault” by Max H. is licensed by Artlist; “On the Edge,” by Max H. is licensed by Artlist