Dont these orders go beyond the Commerce Clause, infringe the Privileges or Immunities Clause, or violate one of the other constitutional provisions Im constantly banging on about? Surely Icant approve such extreme impositions on economic liberty, the right to travel, and just the basic freedom to go about your daily life as you choose so long as you dont get in the way of others freedom to do the same?
Well, thats the rub. As Iexplained during Catos online forum on Coronavirus and the Constitution, in apandemic when we dont know whos infected and infections are often asymptomatic, these sorts of restrictions end up maximizing freedom. The traditional libertarian principle that one has aright to swing ones fists, but that right ends at the tip of someone elses nose, means government can restrict our movements and activities, because were all fistswingers now.
This isnt like seatbelt mandates or soda restrictions, where the government regulates your behavior for our own good, becausesetting aside the issue of publicly borne health care coststhe only person you hurt by not wearing aseatbelt or drinking too much sugar is yourself. With communicable diseases, you violate others rights just by being around them.
The federal government is one of enumerated and thus limited powersat least in theory, if observed largely in the breach since the New Dealbut states have police powers to govern for the public health, safety, welfare, and morals (the last one having fallen away in recent decades). Accordingly, in light of the best epidemiological data we have, state and local executives ordered shut downs to prevent people from being around too many other people and thus spreading the disease.
Interestingly, despite the infamous pictures of springbreakers and St. Patricks Day revelers, these government actions were lagging indicators. Restaurant traffic and airline travel fell off acliff before any official action. Airports are still open, even though the president has total authority to shut them down, as George W. Bush did on 9/11.
People began socialdistancing and wearing masks without any edicts. Sports leagues canceled their seasons without so much as a dont play ball from state umpires.
Not being satisfied with this largescale recognition of the threat we face and compliance with commonsense rules for the new normal, however, governors and mayors have begun to overreach. Although Ihad been telling reporters that nobody was going to get arrested for reading in the park or enjoying wildlife with her family, police were indeed telling people to move along if they were in apublic space, even if they were nowhere near anybody else.
When we got questions at that Cato forum about restrictions on the sale of nonessential products or prohibitions on fishinga right going back to Magna Carta!I thought these were farfetched hypotheticals, but it turns out they were all too real.
Then came the bans on parking at achurch and staying in your car to hear asermon, ahead of Easter Sunday, no less, which led toone of the best district court opinionsIve read in along time, reversing such an order in Louisville. (Full disclosure: Judge Justin Walker is afriend, and Im advising the Mississippi Justice Institute on one of these cases in Greenville, Miss.)
Look, this isnt about religious liberty, or any other constitutional right in particular. Assuming that socialdistancing is required to flatten the curve and fight COVID-19, such rules are fine so long as theyre applied equally everywhere, whether to yoga studios or churches, hackathons or street protests.
But theyre not fine when theyre arbitrarily targeted at some businesses and not others, as if coronavirus spreads more in gun shops than liquor stores. Theyre also not fine when they have nothing to do with socialdistancing, as with the fatwas against drivein liturgy or closing only aisles three and five of abigbox store. Or when tennis courts are closed even if the players wear allwhite masks and promise not to both go to the net at the same time. Or that video of the cop chasing that poor guy going for arun on the beach by his lonesome.
These ridiculous examples of petty tyranny led to mymost viral tweet ever: Angered by citations for being in park with nuclear family, or in car at church, or running on the beach. Or nonessential goods roped off in stores. These things have nothing to do with fighting the virus and everything to do with powerhungry politicians and law enforcement.
Just because significant restrictions on our daytoday lives are warranted doesnt mean its afreeforall for government coercion. To borrow alegal standard from adifferent context, the rules have to be congruent and proportional to the harm being addressed. As amatter of law, judges will give executives awide berth to deal with acrisis, but their enforcement measures still have to pass the constitutional smell test.
More fundamentally, any regulations that dont make common sense, that arent seen as reasonable by most people, are simply not going to be taken as legitimate, and they wont be followed. The American people will decide what restrictions are reasonable, and for how long. Just like they decided when to shut down, they have total authority to decide when to reopen.
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