“Are the Lockdown Orders Constitutional?”

I’ve got a legal explainer up at ArcDigital, my first appearance there. My answer is “Mostly, yes.” You can read it here. From its conclusion:

After the immediate threat to life has passed, both we and the courts must be vigilant that constitutional rights now bent spring back upright, and that governments promptly and fully relinquish whatever emergency powers they have flexed. But we also need to face the facts about this country’s actual constitutional law, which from the Revolution to the present day has been united in treating legitimate government power as at its zenith during a “hot” emergency of deadly contagion.

It can be tempting to spin tales of constitutional law as we might like it to have been, and pass that off as the actual state of the law. We who believe in law as law should especially resist that temptation.

P.S. More sources on quarantine and related public health powers: Mark Miller, Pacific Legal Foundation; Al Tompkins, Poynter; Rebecca Katz et al., Journal of Public Health Management Practice 2018.


  • This question is no longer the interesting one, and never really was. What we need analysis on by the legal community is the legality of ongoing lockdown orders in the face of clear data that the threat has passed (data that is higher quality than that which led us to the lockdowns to begin with), and the scenarios where governors continue to extend executive power ad infinitum. What avenues for relief and oversight to citizens have then?

  • Thank you for identifying the subject matter of my little essay as never really interesting, Ray! Let me propose a division of labor between the two of us: you write on topics you consider interesting, and I’ll go on writing on ones I consider interesting.

    All the best,
    Site editor

  • Funny you mentioned Pennsylvania. From what I understand the Governor is allowed to order a “state of emergency” that gives him the power to act. That ‘state of emergency” and his powers only lasts 30 days,then the Legislature has to vote to extend those powers. That isn’t happening. The Governor is ignoring the Legislature. The same thing is happening in Michigan. Pennsylvania’s ‘state of emergency” started March 16th.

    • I don’t say anything in my article about the class of challenges that say a governor or mayor has overstepped the terms of the statute laying out emergency powers. (To name one example, a lawmaker in downstate Illinois has won a ruling at an early stage on such a claim.) These are decided under statutory, not constitutional, law and the usual deference that judges fall back on in public health emergencies may not apply: if the governor doesn’t have the power in the first place, he loses.

  • One can simultaneously acknowledge a state’s power to take appropriate measures in the face of a pandemic and also insist that those measures meet some measure of rather strict scrutiny on both a facial and as-applied basis. I think the situation we have now is overly deferential to the whims of individual state governors with a complete abdication of legislative oversight (will Michigan’s legislature be stirred to action? I hope so but think not) and not much judicial oversight that I have seen.

    Another problem is the enormous wreckage inflicted on the economy on sometimes rather shaky grounds, and the mostly unsupportable distinction between allegedly essential and non-essential economic activity. The virus knows no such boundaries. Appropriate measures for a grocery store or a dry cleaner or a liquor store or a gas station/convenience store will work equally well in any other location. Same goes for essential/non-essential medical procedures, while exempting abortion, which has nothing to do with any public health concern and everything to do with politics.

    Modoc County in California, on the Oregon border, is an example. What may be appropriate for San Fransisco or LA County is ridiculous as applied to a rural county with zero cases. I think it would be completely appropriate for a judge reviewing such state-wide blanket rules to find constitutional problems as applied to particular areas. Same with Michigan. The Upper Peninsula is not metro Detroit.

    Kind regards,

    • “One … may insist” that courts apply some measure of strict scrutiny. And yet if this is not something courts currently do apply, or ever have applied through American history back to and before the Founding, then one is making a case for developing a new constitutional law different from the one we have. Maybe that’s a good idea! But if so it should be couched as something new and considered as such.

      • Good sir:

        I’m thinking out loud. I don’t know this area of law. Such a level of scrutiny is easier applied as a matter of state constitutional law (or amendment) or statute. I am calling more for the way things ought to be because I am bitterly disappointed with the way things stand now.

        Kind regards,

      • Hasn’t that ship sailed already? Courts are already in the business of scrutinizing deprivation of rights. And now, with wholesale deprivations of the right to travel, the right to associate etc., deference is the order of the day? That smacks of situational law.

        A ban on gun sales, but allowing a peeps factory to keep going is simply not rational. And the question of motives must come into play. And once the motives are something other than public health, the whole thing crashes down.

  • Thank you for the “explainer” article. The state of the law, which you document well in the article, will not please those with libertarian inclinations. I account myself as having such inclinations. But I also recall the necessity of quarantines, by living through times of smaller and local quarantines.

    Polio, Diptheria, Measles, and Mumps were among the childhood and even adult scourges within the lifetime of many of us. Those disease could, and often did, cause death or serious lifetime injury. Vaccines now make them very rare.

    I recall as a child that many spring and summer months became “polio season”. If a case occurred anywhere, nearby counties and towns prohibited or drastically curtailed many activities such as sports events, swimming pools and theatres; some dismissed schools for a few weeks.

    Those largely local shutdowns were only rarely violated. I think that is primarily because people found the disease more dangerous than the economic impact of the quarantine measures.

    Our parents’ generation lived through the epidemic “Spanish ‘Flu” circa 1918. Quarantines saved many lives then as well.

    My takeaway from your article is that current (and historical) law provides few or no limitations on the measures dictated by the executive branch of federal, state or local governments issuing quarantine orders. Personal experience of local quarantines long ago by many of us certainly reflects that.