CHICAGO — The orders seem prudent in the bid to thwart the spread of the novel coronavirus: Don’t go out, don’t gather with others and keep your stores closed. But growing segments of the U.S. population say state and federal governments are trampling on freedoms central to American life in the name of protecting public health.
The case is already being made. A church-goer in New Hampshire says prohibitions against large gatherings violate her religious rights. A Pennsylvania golf course owner argues that gubernatorial edicts shuttering his business amount to illegal seizure of his private property.
If civil libertarians aren’t yet sounding alarms, many have their hands hovering over the button.
“So far, we haven’t had draconian methods, like armed police blocking people’s movement in the streets, surveillance and phone tapping,” said Larry Gostin, a public health lawyer at Georgetown University. “But we are seeing lockdowns of millions of citizens like we have never seen before.”
He added: “We are on the precipice of something that could transform American values and freedoms.”
Questions about the extent of governmental power to impose restrictions haven’t been fully resolved since New York cook Mary Mallon, a typhoid carrier, defied public health department orders to isolate. Mallon, better known as Typhoid Mary, lost her legal battle for freedom and ended up effectively imprisoned for 28 years on an island cottage, dying there in 1938.
Responses are no longer as severe. But thousands of Americans are already confined to their homes under threat of fines and even jail. Businesses are losing thousands of dollars. Workers are laid off.
One man infected with the coronavirus in Kentucky recently left a hospital and refused to quarantine; an armed county deputy was posted outside his home to ensure the 53-year-old stayed put.
“It’s a step I hoped I’d never have to take, but we can’t allow one person who we know has the virus to refuse to protect their neighbours,” Kentucky Gov. Andy Beshear told reporters.
Authority to order shutdowns and quarantines inside states rests almost entirely with states under provisions in the U.S. Constitution ceding power not explicitly delegated to the federal government to states.
The federal government itself can’t order nationwide quarantines or business closures, courts have ruled over the years. It does, however, have clear power under constitutional clauses regulating commerce to quarantine international travellers or those travelling state to state who are suspected of carrying an infectious disease.
At least some legal scholars believe the Constitution’s Commerce Clause may vest President Donald Trump with powers to impose a national lockdown, but he’d likely have to resort to persuading all 50 states to agree to uniform restrictions if he ever seriously contemplated such a move.
That doesn’t appear to be his inclination. He said this week he was hoping to lift restrictions in a bid to boost the plummeting U.S. economy as early as Easter Sunday, April 12, setting up a standoff with state officials who have said they can’t risk it.
“The federal government has done guidelines. And then states can follow the guidelines, states can fashion the guidelines to fit their specific circumstances,” New York Gov. Andrew Cuomo said. “What works for New York isn’t necessarily going to work for Tulsa or San Antonio. The federal government isn’t saying we mandate anything.”
Laws spelling out what steps a state can take during a pandemic can be complex and difficult for judges to sort through. Some haven’t been updated in decades, according to a report by the Congressional Research Service.
And they also differ state to state. The maximum penalty in most states if someone violates mandatory quarantines — often backed by a court order — is no more than a year in jail. In Mississippi, it can be 10 years in some circumstances, according to the National Conference of State legislatures.
A few Americans are already fed up and have taken their grievances to court by suing their respective states. But a relative trickle of legal challenges will likely become a flood if lockdowns drag on for weeks and frustrations mount. The number of dead in the U.S. has reached 1,042 with more than 69,000 infections, and scientists warn the peak has not happened.
The Pennsylvania lawsuit filed on behalf of the Blueberry Hill Golf Club says Gov. Tom Wolf’s power to close businesses under state law is limited to man-made or natural disasters such as oil spills, tornadoes and mudslides. The coronavirus, it argues, doesn’t fall into those categories. The state has more than 1,280 cases.
For most people, the virus causes mild or moderate symptoms, such as fever and cough that clear up in two to three weeks. For some, especially older adults and people with existing health problems, it can cause more severe illness, including pneumonia.
The state-court filing says the golf course has a short window that starts with an influx of golfers in spring to recoup costs of maintaining greens and fairways. With cash flow now cut, it may not be able to make vital bank payments, the lawsuit says.
The owner would undertake COVID-19 prevention protocols if permitted to re-open, the lawsuit said, including but not limited to “requiring golfers to walk, or if golfers wish to ride in carts, require golfers to use individual carts for each golfer.”
So far, judges have rejected the few legal challenges to state restrictions. Pennsylvania’s Supreme Court refused to freeze Wolf’s sweeping shutdown orders. In response to complaints, Wolf did ease restrictions on some businesses.
A New Hampshire court issued a similar ruling in the lawsuit by the church-goer. It upheld Gov. Chris Sununu’s ban on large gatherings, the court’s written ruling saying it couldn’t imagine a more critical public objective “than protecting the citizens of this state and this country from becoming sick and dying from this pandemic.” New Hampshire reports more than 130 cases.
But courts have never been asked whether the unprecedented lockdowns are constitutional “and in violation of individual rights,” Gostin said.
A battle all the way to the U.S. Supreme Court on that issue, he says, may be looming.
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Michael Tarm, The Associated Press