Archive for May, 2020

“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.

More on whether shutdown orders are a taking; WSJ federalism reprint ungated

A month ago I posted about the interesting legal and policy question of whether business closures aimed at preventing spread of the COVID-19 virus should be seen as a taking for which fair compensation is due. I’ve got another round on that subject up now at Cato at Liberty.

In addition, the piece I wrote a month ago for the Wall Street Journal on federalism and the pandemic response is now out from behind that newspaper’s paywall in a Cato reprint.

Liability roundup