An essential principle of the United States is that it is a free country, with individual liberties guaranteed, and government power limited.  That concept is now being tested.  A deadly worldwide pandemic has led to draconian lockdowns, forced closings of businesses, and even mandatory “stay at home” orders, some with Orwellian, friendly sounding names like “Safer at Home” or “Stay Home, Stay Healthy” – but still mandatory and enforced by police.  The unprecedented, far-reaching orders have been issued by unelected county health officers as well as by governors of states.

Are these orders legal?  Do state governors have the legal and Constitutional authority to forcibly close all “non-essential” businesses?  To confine the entire population in their homes indefinitely without a trial?  Who gets to decide which businesses are non-essential?  In California, churches, synagogues and mosques have been deemed “non-essential” and ordered closed, but liquor and hardware stores are still open and doing a bustling business.

President Trump proclaimed a national state of emergency under the National Emergencies Act on March 13, 2020.  However, nothing in that proclamation closed any businesses, confined anyone in their homes or infringed on any other constitutional rights or liberties.  That, and other actions by the federal government merely cleared away certain regulatory roadblocks that could interfere with the government’s response to the pandemic.

By contrast, the orders issued at the state and local level have dramatically restricted the civil liberties of ordinary law-abiding Americans, shutting down all “non-essential” businesses, causing, at last count, 22 million Americans to lose their jobs, and confining the vast majority of the nation to their homes.  All of this was accomplished not pursuant to any laws specifically authorizing these actions, but rather, on the basis of general laws pertaining to emergencies and quarantines.  For example, the statewide order in California is based on the governor’s power, during a state of emergency, to coordinate a State Emergency Plan, to exercise authority over agencies of the state government and to exercise the police power vested in the state, and the state Health Department’s authority to “quarantine, isolate, inspect, and disinfect persons, animals, houses, rooms, other property, places, cities, or localities, whenever in its judgment the action is necessary to protect or preserve the public health.”  Nothing in the state law specifically authorizes the governor to order all residents of the state to be confined to their homes indefinitely, or to shutter all businesses deemed non-essential, so the state government is proceeding instead under these very broad, general provisions which have never before in the history of the state been employed or interpreted in such an all-encompassing manner.

Not only has this crisis given government officials with authoritarian impulses an opportunity to rule by decree, it has exposed the lamentable fact that most Americans tend to willingly obey such “orders” without even questioning whether they are legally valid.

What are the limits of government power?  Do governors really have the authority to issue such sweeping orders controlling the personal lives of each of the millions of citizens living within the borders of their states?  To answer that question, it is necessary to first examine the bedrock principle of democracy – that government derives its legitimacy from the consent of the governed.  This principle is enshrined in our Declaration of Independence:  “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”  The power that a government may legitimately exercise is only that power that has been conferred on the government by the people. 

In the United States, that power is delegated to government officials by constitutions and laws.  Governors are not kings.  They do not rule over the people in their states; rather, they are employees of the state and have been given certain executive powers as specified in the state constitution.  These powers are always limited and never absolute.

The supreme law of the United States is the federal Constitution, a document so fundamental to our system of governance that, to the extent that any law conflicts with it, that law is deemed invalid.  The First Amendment to the Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  Through the Fourteenth Amendment to the Constitution, this prohibition was made applicable to the state governments.  And yet, these “stay-at-home orders” very clearly and overtly restrict the “right of the people peaceably to assemble” and the orders shuttering churches and other houses of worship undeniably infringe on the free exercise of religion.  While it is easy for government officials to say that worship can be done remotely or in the privacy of the homes to which we are all individually confined, the fact remains that for many religious believers, there is an admonition to come together to worship, and for others, it is imperative to present prayers and offerings in a holy house of worship.  Some people (the homeless, for example), may not have remote electronic access to worship services.  In any event, it is not for the government to decide that these religious beliefs are unimportant or that they may be disregarded.  And if home improvement stores, banks, supermarkets and Walmarts are permitted to remain open so long as social distancing measures are practiced, why are churches not allowed to do the same?

The right to travel has also been recognized as a fundamental individual right guaranteed by the Constitution.  “The right to travel is a part of the 'liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment.” Kent v. Dulles , 357 U.S. 116 (1958)  And yet, the orders confining the entire population to their homes except for “essential activities” like buying liquor or power tools (but definitely not going to church on Easter Sunday) restrict the right of the people to travel.

When individual Constitutional rights and liberties are impacted by government action, such action is subject to “strict scrutiny” by the courts.  The government must establish that there is a “compelling state interest” and that its action is the “least restrictive means” to promote that interest.  It seems highly dubious that an indefinite lockdown of the entire population is the “least restrictive means” to achieve any legitimate objective.  It is hard to imagine a more restrictive means than locking everyone up in their homes and shuttering all businesses deemed “non-essential.”  The state may have the power to quarantine certain individuals who are reasonably suspected of having been exposed to the SARS-COv-2 virus, but in the U.S., only about one tenth of one percent of the population have tested positive.  That is hardly reasonable justification for incarcerating the entire population under house arrest without due process of law.  A less-restrictive means of achieving the government interest would be to identify high-risk individuals -- those who have been exposed or those who have particular susceptibility to the disease -- and place them under quarantine or some form of isolation, while letting the vast majority of Americans continue to enjoy their liberties and Constitutional rights.  Another method would be to do as Sweden has done, and implement social distancing rules and recommendations without shutting down businesses or forcibly confining the entire population in their homes.  Or perhaps houses of worship -- where constitutionally protected activity takes place -- could be allowed to operate under the same rules as grocery stores, hardware stores and wine shops:  no forced closing, but everyone maintains a six-foot separation and wears a face covering.  There are any number of possible less restrictive means of slowing the spread of the virus.  The means that the state governments have chosen appear to be the most restrictive means, rather than the least.

The Bill of Rights in the United States Constitution does not mention any exceptions to individual rights and liberties when there is a declared state of emergency.  Such an exception, if it existed, would effectively render the rights illusory, because authoritarian-minded government officials could simply declare an emergency and thereby negate the rights of the people.  Indeed, this is, historically, the way it has usually been done  It is at fearful times like these when our individual rights are most threatened and most in need of being protected and preserved.

The U.S. Supreme Court has held that “emergency may not create power.”  Wilson v. New, 243 U.S. 332 (1917), citing Ex Parte Milligan, 4 Wall. 2 (1866).  The Civil War did not give President Lincoln the authority to have civilians in Indiana tried by military commissions without due process of law.  Even during such a chaotic time when the nation was convulsed in violence and bloodshed, individual Constitutional rights were protected.  Those precious rights should be no less protected today.  No virus can strip Americans of their civil rights.  But as this crisis and the government responses to it have shown, if we are not vigilant in protecting our liberties, they will be taken from us.

Marc S. Strecker is an attorney in Orange County, California.

Image credit: U.S. Air Force illustration by James Borland // public domain