Frequently asked questions (FAQs) about the government’s emergency orders to combat coronavirus

April 28, 2020 | By LARRY SALZMAN
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PLF is committed to protecting the individual rights of Americans during the COVID-19 crisis. Our approach is forward looking, focusing on empowering Americans and helping them recover from the crisis. We believe that only the entrepreneurial actions of individuals and businesses will get the nation moving in the right direction. Read our statement on rebuilding America.

We have received many inquiries about PLF’s opinions and actions related to the government’s emergency orders across various states. Please find our answers to some of the most common questions we have received below.

If you have a problem that falls under PLF’s areas of practice, please submit it using this online form. We will consider whether your situation merits PLF representation and get back to you. Please note that submitting the form does not establish any attorney–client relationship. In addition, no information included in these FAQs should be taken as legal advice.

What are the “police powers” of a state government, and do they provide authority for the coronavirus-related lockdowns?

The authority traditionally given to a state government to protect the health and safety of its citizens is referred to as its “police powers.” Courts have long held that these powers can be used to restrict people’s movement or take other coercive action against people who carry or who have been exposed to a serious infectious disease when the purpose is to prevent its spread to others. For instance, in the 1905 case of Jacobson v. Massachusetts, the U.S. Supreme Court ruled that compulsory vaccination to prevent the spread of smallpox was authorized by a state’s “police powers.”

The shelter-in-place orders that have recently been issued by many state governors are unprecedented in their scope. Unlike typical quarantine orders, they do not primarily limit the freedom of individuals who are known to have been infected or exposed to the disease, nor do they restrict movement within disease hot spots. Instead, these orders curtail the liberty of all without distinguishing between healthy, exposed, or infected people.

At PLF, we believe that the state’s police powers should be well defined and no greater than necessary to protect individual rights. In our litigation, we often argue that government interference with property rights or economic liberty exceeds the state’s legitimate use of its police powers.

Nonetheless, legislatures and courts have historically done a poor job of establishing clear limits on police powers, especially during emergencies. In the absence of clear direction, state governors have reached for broadly worded emergency powers laws (often written for wartime) to justify whatever policies they have deemed necessary in response to the perceived crisis. These broad and ill-defined emergency powers have rightly struck many Americans as being contrary to the principles of limited government.

The nation’s public health systems were unprepared for the novel coronavirus. Our legal system was likewise unprepared, providing less clarity than needed to the government officials who are responsible for acting during this crisis.

Are the shelter-in-place orders constitutional?

Because these orders are unprecedented and based on broadly worded emergency powers statutes, they raise constitutional concerns. But a crucial question to ask is how will courts react to lawsuits that are filed to challenge these orders?

The short answer is that it depends. Courts tend to determine whether restrictions on liberty violate constitutional rights by asking whether the purpose of the restrictions is legitimate and whether the means chosen to achieve that purpose are appropriate. This may involve also asking whether a sufficient connection exists between the means and the ends of the government’s actions.

The shelter-in-place orders restrict many of the liberties guaranteed by the federal and state constitutions. The extreme policies we are seeing now do raise serious constitutional questions, but courts have long held that quarantines are a legitimate use of a state’s police powers. The government has also said that the current policies are necessary on the grounds that extreme uncertainty exists about this novel disease, including: how lethal it is, how easily it is transmitted, and how widespread it already was when it was first detected.

Courts will likely give the benefit of the doubt to the government as long as the disease is thought to be easily communicated and very lethal. Simply put, judges will be reluctant to second-guess even extreme restrictions on liberty that appear to be necessary. This is especially true if they believe that doing so will stop infected people from giving a potentially lethal infection to healthy people.

As time goes on and evidence accumulates to resolve uncertainties surrounding this disease, courts will not be so quick to defer to other government officials about how much restriction is necessary. The question of whether orders are constitutional will then be whether the government’s actions are protecting people rather than merely controlling them.

For more on this topic, see “Are Continued Shutdown Orders Constitutional?

Must the government compensate me if I have to close my business during this period?

The Fifth Amendment to the U.S. Constitution states that the government may not take private property for public use without paying “just compensation.” State constitutions have analogous provisions. Under the prevailing precedent, it is unlikely that courts will hold that closure orders require compensation. Some states, like California, have statutes requiring compensation for property that has been commandeered pursuant to emergency laws that have been invoked to support closure orders. However, few, if any, past cases exist to indicate under what conditions compensation will be paid.

Another reason why courts are likely to rule against compensation is using police powers in an emergency is widely accepted as an exception to the duty to compensate. While some exercises of police powers merit compensation, to the extent that courts believe that failing to shut down a business contributes to a health emergency, they may find that no compensation is due. In addition, past Supreme Court cases and other cases make it less likely for business owners to obtain compensation for damage to property that is temporary, and the closure orders seem likely to only last a few months. Finally, courts may find it difficult to separate the loss of income from closure orders from the loss of income from the spread of the virus itself. If fewer people patronize businesses on their own accord, courts are unlikely to decide that the government’s orders are causing economic harm.

Is it unconstitutional for the government to prevent me from working and earning a living?

Police powers give government the authority to quarantine infected or exposed people and/or to restrict movement to or from infected neighborhoods—even if it affects individuals’ livelihoods and the ability to support them. The sweeping shutdowns we are seeing today, affecting whole states and including large numbers of uninfected people, are unprecedented.

As the coronavirus becomes better understood and the methods to limit its spread become more established, courts will become more likely to subject government restrictions to greater scrutiny.

A helpful case is Jew Ho v. Williamson from 1900, in which a federal appellate court struck down a lockdown order placed over San Francisco’s Chinatown. The order was meant to stop a bubonic plague outbreak, but the court found that the cordon was “unscientific.” The court focused on the soundness of the government’s justification for the quarantine, including its scientific rationale, rather than on the damage the cordon wrought on the plaintiff’s grocery business.

Likewise, we can expect courts today to focus on whether the statewide shutdowns are reasonably considered necessary to stop the spread of the disease rather than on its effect on residents’ ability to work and make a living.

What gives the government the power to determine that some businesses or jobs are “essential” and others “non-essential”?

When exercising police powers, the government often must make judgments about what kinds of rules are necessary and how they should be enforced. One can reasonably see that the distinctions between “essential” and “non-essential” businesses are arbitrary. For example, if beaches are closed, is pro wrestling really essential?

Distinctions between people and businesses that are arbitrary or irrational can be the basis of an economic liberty lawsuit. But with respect to economic freedoms, courts will typically uphold government orders so long as they are “rationally related” to achieving the government’s purpose of protecting public health.

Many of PLF’s cases argue that the right to earn a living deserves greater protection because the “rationally related” standard is often abused, allowing government too much discretion to restrict economic liberty. But courts are more willing to defer to the judgment of legislative or executive officials during a health emergency.

The longer the emergency conditions persist, however, the more likely courts will scrutinize the judgments made by the other branches of government. Neither governors nor state legislatures have a blank check to determine what is “essential” or to subject “non-essential” businesses to irrational rules.

One of the more plausible constitutional cases that one might bring in the current environment could involve a demand for due process, asking that one be given a prompt hearing to contest the classification of one’s work as non-essential and therefore required to be closed. Everyone has a constitutional right to a meaningful hearing at a meaningful time to contest the government’s reasons for depriving one of their property or their liberty. This includes the right to earn a living.

Do the stay-at-home orders violate my right to assemble in groups?

The Bill of Rights guarantees that governments (both state and federal) shall not infringe on a variety of individual rights, including the First Amendment’s protection of the rights to speak, assemble, and petition the government. These constitutional rights can be curtailed when the government has a “compelling” purpose and so long as it restricts such rights no more than absolutely necessary to accomplish this purpose.

Preventing the spread of a pandemic almost certainly qualifies as a compelling purpose, so some restrictions on the rights to travel or assemble in groups may be justified during this pandemic. However, laws restricting speech or assembly may still be constitutionally defective if they restrict significantly more freedom than necessary, if they are vague and imprecise, or if they arbitrarily forbid some kinds of speech but not others. For instance, one California county was criticized for banning singing in churches even when proper social distancing was maintained while still allowing other forms of comparable expression, such as giving speeches or sermons.

Government policies may also be improper if they seem to single out activities protected by the First Amendment while allowing activities that seem to pose similar risks. A federal district court in Kentucky recently barred the Mayor of Louisville from enforcing a prohibition against drive-through church services since they pose no greater risk to health and safety than the other facilities the city had allowed to remain open, such as drive-through liquor stores.

Is PLF going to sue cities that have imposed a moratorium on property owners evicting tenants or collecting rent?

Some states and cities have imposed moratoriums that prevent landlords from forcing tenants to pay rent and from evicting tenants while stay-at-home orders are in effect. To the extent that these moratoriums are temporary and still require tenants to pay rent that is not paid on time at a later date, they will likely be upheld in court. A court is unlikely to award damages for a delay in payment.

There is a high risk that filing lawsuits against these actions in the current environment will establish bad case law that will only frustrate attempts to protect property rights in more conventional times.

PLF is monitoring other types of laws, for instance, that could form the basis for potential challenges if they are not relaxed soon. For instance, in California, courts have effectively suspended the right to evict tenants for almost any reason for an indefinite period of time. Some cities have proposed “rent holidays” during the duration of emergency orders without requiring tenants to pay rent later. If enacted, these proposals would face serious scrutiny by courts. In this instance, PLF will consider the pro bono representation of appropriate plaintiffs.

Most cities have backed off of these radical proposals, but others have followed Representative Ilhan Omar of Minnesota, who introduced a federal bill that would cancel rent and mortgage payments for the duration of the coronavirus emergency and set up a relief fund to cover losses from the cancelled payments.

PLF is most interested in challenging government bodies that violate property rights with new laws that are unrelated to the health crisis.

If we don’t challenge these orders in court, does that mean we are letting government abuse go unchecked?

No. Bringing a lawsuit is always a double-edged sword. If one wins, rights are more secure. If the government wins, a legal precedent may be established that would make it easier for the government to continue violating constitutional rights. Because courts are often reluctant to second-guess other government officials during a health emergency, careful thought and timing are required to bring forward a promising case that will maximize our chances of winning without creating a harmful precedent.

In considering how to time a successful challenge to the government’s emergency powers, Ex parte Milligan is instructive. The 1866 Supreme Court case concerned the Lincoln administration’s practice of trying Union civilians by military tribunal during the Civil War. This was a serious violation of the right to due process. The Supreme Court did ultimately rule that the practice was impermissible but not until after the Civil War ended. The Court was willing to establish a good precedent, partly because the immediate crisis had passed. As a result, Ex parte Milligan established an important civil rights protection for Americans for over 150years.

In our situation, a case will be more likely to be successful once the public’s fear has subsided as more evidence is obtained about the lethality and communicability of the disease. A case is also more likely to succeed if brought in a locale where COVID-19 has not caused a lot of damage, as a shutdown may be more likely to be seen as unreasonable in such locales.

Just as politicans’ impulse to do something in a crisis can create unwanted outcomes, so, too, can bringing a lawsuit at the wrong time cause more harm than good. PLF is monitoring the situation with a cool head so that we can step in with lawsuits at a strategically strong time and place. This will allow us to set a precedent that will protect people’s freedoms not only in this crisis but also going forward.

For more than 45 years, PLF has defended individual rights and our Constitution in America’s courts. We are working harder than ever during this crisis to monitor and assess the government’s response to the pandemic. When and where effective lawsuits can be filed to enforce the constitution’s limits on government power, we will do so.

If you think you have a case we should consider, please submit it here.

Who has the power to remove these orders and reopen the economy?

The Constitution divides the federal government’s powers among three branches, delegates certain enumerated powers to the federal government, and reserves all other powers to the states or people. Unlike states, the federal government lacks police powers and can only act according to its enumerated powers. This is why most of the legal action in response to the crisis has come from state governors.

When asking who has the power to “reopen” the economy, the answer depends on which parts of the economy we’re considering. The federal government has the authority to remove or suspend international tariffs and set rules about overseas trade and immigration. The federal government may also provide emergency funding. Through its enumerated power to regulate commerce among states, the federal government can direct federal agencies, such as the U.S. Food and Drug Administration and the Centers for Disease Control and Prevention, to combat the pandemic.

However, the federal government can’t compel governors or mayors to lift lockdown orders, except where a lockdown order violates a federal law or constitutional protection. In such a case, federal courts could get involved. In short, the federal government’s powers are far from total.

Therefore, state and local governments—those that issued the lockdown orders in the first place—have the authority to lift or modify them and to reopen the economy.