A look back at the most ridiculous and arbitrary COVID restrictions

It’s been one year since COVID restrictions began going into effect in states and counties across the nation.

Although some of these restrictions were reasonable (and temporary) measures designed to keep hospitals from being overwhelmed, others seemed arbitrary and bore little connection to health and safety.

At best, they were slightly ridiculous; at worst, they were an exercise of raw government power to control its citizens. And many of them have hung around long after they possibly could have been justified by the uncertainty that was present at the start of the pandemic.

The Worst Offenders

• Michigan Governor Gretchen Whitmer issued a draconian order that not only required most businesses to close, but also:
  • forced hardware stores, which were allowed to remain open, to close off the parts of their stores that sold carpet, flooring, furniture, garden supplies, and paint;
  • disregarded businesses’ free speech rights by prohibiting them from advertising or promoting any goods other than “groceries, medical supplies, or items that are necessary to maintain the safety, sanitation, and basic operation of residences”;
  • banned motorboats, jet skis, and other watercraft, while allowing the use of kayaks, canoes, and sailboats; and
  • prohibited residents from traveling to a second home or a vacation rental.
• Vermont Governor Phil Scott announcedthat no one may gather with anyone from another household—even outdoors. He justified the ban because “you don’t know what your neighbor has done.” (He later amended the order to allow socially distanced walks with one other person.)
• Villages in New York banned the use of leaf-blowers. According to the mayor of Sleepy Hollow, because of the COVID pandemic, blowing dust into the air “creates a HAZMAT situation.” And in Croton-on-Hudson, the Village manager expressed “concern that the use of leaf blowers may be contributing to the spread of the virus although there is no scientific proof of this.”
• Massachusetts Governor Charlie Baker imposed a “no exceptions” mask mandate requiring everyone age 5 and older to wear masks in public, even when outdoors and socially distanced (or, presumably, alone).
• Los Angeles Mayor Eric Garcetti banned all travel other than for essential activities, including “travel on foot, bicycle, scooter, motorcycle, automobile, or public transit.” In other words, no unnecessary walking
• The mayor of Louisville, Kentucky, banned drive-in church services for Easter. Fortunately, a federal judge put a stop to the ban, writing that the mayor’s order was something “this court never expected to see outside the pages of a dystopian novel, or perhaps the pages of The Onion.”

But it wasn’t just the measures themselves that were troublesome. The enforcement of these new laws was also overzealous and absurd.

• Police in Encinitas, California, cited 22 people for “watching the sunset” and “having picnics near the beach.” Violations carry fines of up to $1,000 and up to six months in jail.
• A 19-year-old woman in Pennsylvania was stopped by police and given a $200 ticket when she went for a drive—alone—“just to get out of the house.”
• In California, police chased down and arrested paddleboarders and surfers who went out in the ocean—socially distanced from anyone.
• A man in Brighton, Colorado, was arrested for playing catch with his 6-year-old daughter on a near-empty softball field.

Separation of powers matters

In each case, COVID restrictions were imposed by executive branch officials—governors, mayors, sheriffs, and law enforcement—relying on broad grants of power delegated by legislatures. The legislators did not write or vote on the restrictions themselves. Instead, it was left to the officials who are responsible for enforcing the restrictions to decide what is banned and what is allowed.

That approach is contrary to the separation of powers that underlies the American system of government. Under our system, power is supposed to be divided among different branches that check and balance each other, for the protection of our rights and freedom. Laws are supposed to be enacted by the legislative branch. The executive branch is supposed to enforce the laws, not make them. It is that constitutional structure that helps protect our liberty and freedoms.

As Justice Antonin Scalia said:

“If you think a bill of rights is what sets us apart, you’re crazy. Every banana republic in the world has a bill of rights.”

He continued:

“Every president for life has a bill of rights. The bill of rights of the former evil empire, the Union of Soviet Socialist Republics, was much better than ours. I mean it literally. It was much better. We guarantee freedom of speech and of the press. Big deal. They guaranteed freedom of speech, of the press, of street demonstrations and protests, and anyone who is caught trying to suppress criticism of the government will be called to account. Whoa, that is wonderful stuff!

“Of course, just words on paper. What our Framers would have called a ‘parchment guarantee.’ And the reason is that the real constitution of the Soviet Union—you think of the word ‘constitution’—it doesn’t mean a ‘bill’ it means ‘structure’: say a person has a sound constitution [you mean] he has a sound structure. The real constitution of the Soviet Union—which our Framers debated [our constitution] that whole summer in Philadelphia in 1787, they didn’t talk about the Bill of Rights, that was an afterthought wasn’t it—that constitution of the Soviet Union did not prevent the centralization of power in one person or in one party. And when that happens, the game is over, the Bill of Rights is just what our Framers would call a ‘parchment guarantee.’”

So, the real key to the distinctiveness of America is the structure of our government and the separation of powers.

Unfortunately, the COVID pandemic has once again shown that when government officials are allowed to reach beyond their proper role, it is the people and their freedoms that suffer. Pacific Legal Foundation is working to limit arbitrary and abusive executive authority and restore the balance of power guaranteed in our Constitution.