Among the wackier claims put forth in four of the lawsuits challenging governor’s virus shutdown orders is that the measures violate the U.S. Constitution by depriving states of a republican form of government. That’s a rhetorical gesture more than a serious legal argument, both because the orders haven’t deprived states of such a form of government, and because the federal courts in any event long ago made clear that the so-called Guarantee Clause can’t be sued over — it’s a political question and not “justiciable.” I’ve got a new piece at The Bulwark looking at the history of attempts to breathe life into the Guarantee Clause and what might happen if courts ever decided to entertain lawsuits under it.
- Case reporting, contact tracing, location monitoring: “Disease Surveillance and the Fourth Amendment” [Alan Z. Rozenshtein, Lawfare]
- Unanimous Supreme Court spanks Ninth Circuit for its attempt to use immigration-law case to bring up (admittedly interesting) issue that neither party had presented and was not necessary to resolve the dispute [Ilya Shapiro and Michael Collins on U.S. v. Sineneng-Smith: “Neither Party Is Right, But the Ninth Circuit Is Wrong”]
- Judge Thomas Hardiman of the Third Circuit on the history of judicial independence [Cato audio]
- “While many scholars have studied Erie v. Tompkins, few have studied the facts of the case, and none have questioned Tompkins’s account. This article argues that Tompkins and his witnesses were not telling the truth.” [Brian L. Frye, SSRN 2018]
- Can procedurally valid constitutional amendments themselves be unconstitutional? [Mike Rappaport and followup post, both 2018]
- And now for something completely different: “Ayn Rand, Gary Lawson, and the Supreme Court” [Balkinization symposium last summer on Ken Kersch book Conservatives and the Constitution, more; unrelated but also about Lawson]
One you won’t want to miss if you’re following the constitutional issues arising from the COVID-19 pandemic. From the Cato description:
Seven weeks into nationwide shutdowns, people are feeling restless. Have some governors and mayors gone too far, as a constitutional matter, in telling people to leave public parks, roping off “nonessential” goods in big-box stores, and other examples that have gotten national attention? What about prohibiting gatherings that exceed some maximum number of people but enforce social-distancing norms? Now that the debate has shifted to “opening up,” what legal considerations should state officials be taking into account? Can we be required to wear masks in public? For that matter, even if the president doesn’t have total authority to decide when to reopen, does the federal government have a role to play beyond pushing the Centers for Disease Control and Prevention and the Food and Drug Administration on the development of tests and vaccines? Should there be different treatment of people in or from hot spots such as New York City, either by other states or the federal government? Please join constitutional scholar Randy Barnett, in conversation with Ilya Shapiro, for an online forum to discuss these and other issues.
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.
“Missouri Attorney General Eric Schmitt, a Republican, blames China for letting the coronavirus spread. So he’s suing China, three government ministries, two local governments, two laboratories and the Chinese Communist Party in U.S. District Court.” A suit of this sort by a state against a foreign sovereign would ordinarily be stopped in its tracks by the Foreign Sovereign Immunities Act of 1976, but never fear: “Last week, Missouri Sen. Josh Hawley introduced legislation to strip China of its sovereign immunity.” [Frank Morris, NPR]
As my colleague Ted Galen Carpenter observed on Monday, there are many and substantial reasons to blame Beijing for bad conduct during the pandemic, and American public opinion has taken note of that. Still, sovereign immunity aside, under the constitutional design laid down by the Framers states aren’t supposed to pursue their own foreign policies. As the Supreme Court put it in Hines v. Davidowitz (1941), “Our system of government … requires that federal power in the field affecting foreign relations be left entirely free from local interference.” In Crosby v. National Foreign Trade Council (2000) the Court unanimously struck down a Massachusetts law barring state entities from buying goods or services from companies doing business with Burma (Myanmar) on the grounds that it interfered with the power of Congress and the Executive Branch to make the most of the sanctions power by exerting unified control over it.
It’s not clear that the different circumstances here would trip the Crosby wire, but Missouri is treading a path here not unlike that of the San Francisco Board of Supervisors, long deservedly criticized for sticking its nose into foreign policy causes whether good or bad. It is noteworthy that Justice Ruth Bader Ginsburg, who takes a somewhat broader view of states’ permissible involvement in this field than do her majority colleagues, has written nonetheless that the case for pre-emption is strongest “when a state action ‘reflects a state policy critical of foreign governments and involve[s] sitting in judgment on them.'” Explicitly hostile measures toward a foreign power are especially likely to undermine U.S. foreign policy by raising the chance of a breach in relations or retaliation. David R. Schmahmann and James S. Finch have more in this 1998 Cato briefing paper.
State constitutions, and the state courts that interpret them, have wide latitude to go farther than their federal counterparts do in protecting liberty. That opens up legal and political strategies for advocates of individual rights. Rich Esenberg of the Wisconsin Institute for Law and Liberty joins Caleb Brown in a Cato Daily Podcast to discuss. Earlier: links on related writings of Judge Jeffrey Sutton and Clint Bolick; “damaging” clauses. Also related: Federalist Society video panel last summer on “Early State Constitutions and Their Influence on the Legislative Branch” with Lynn Uzzell, John Dinan, Mark Graber, moderated by Julie Silverbrook; ConSource.org resource on constitutional history.
- “However peaceable we might be in our intentions, our assembling is a physical threat. Our judgments about liberty, I think, need to reflect that.” [Eugene Volokh on freedom of assembly during an epidemic] Suits against quarantine seldom prevail [Chris Dolmetsch and Malathi Nayak, Bloomberg/Claims Journal] Quarantine and public health measures set important precedents in overcoming judges’ suspicion of delegations of power [Keith Whittington]
- If the federal government decided it wanted to block movement between different states to combat virus transmission, where would it get the legal authority, and what means could it lawfully use? [Gene Healy, Cato] The constitutional background on freedom to travel, as well as search and seizure, during an epidemic [Volokh]
- “The common law also appears not to be a good alternative. One can imagine the litigation nightmare if everyone who got the virus attempted to identify and sue some defendant for damages.” [Tim Brennan, Truth on the Market]
- Cracking down on putatively deceptive accounting practices, SEC penalized “‘bill-and-hold’ transaction orders in which a product is not immediately delivered to its customer.” And that was terrible news for anyone in the business of trying to build public health stockpiles — of vaccines, equipment, PPE — that might be needed in a contagious-disease emergency [John Berlau, CEI] Better than compulsory purchase orders: “Using Purchase Guarantees and Targeted Deregulation to Boost Production of Essential Medical Equipment” [Caleb Watney and Alec Stapp, Mercatus Center]
- Flashpoints include drive-in services, curfews, ID and quarantine of churchgoers: “Religious Freedom Clashes With Public Health Enforcers” [Elizabeth Nolan Brown]
- “FDA Denaturing Rules Are Toxic for Small Distillers” [Jacob Grier]
- I join Caleb Brown at the Cato Daily Podcast to talk about federalism and the lead role of the states in applying pandemic-related police power. See also Chris Edwards, Cato;
- First John Tamny disagreed with my observation in the WSJ that the Constitution allows states, not the federal government, the power to make lockdown decisions during epidemic outbreaks. Now Roger Pilon weighs in and settles it [Real Clear Markets]
- “Contagion and the Right to Travel” [Anthony Michael Kreis, Harvard Law Review Blog] Lawsuits challenging lockdown orders, sometimes on constitutional grounds, are tried, but the courts are highly deferential during emergencies of this sort [Neil MacFarquhar, New York Times] “Divided Pennsylvania Supreme Court: Governor can shut down firearms dealers during Coronavirus emergency” [Josh Blackman]
- “Now the ex-fiancé and his paramour are using Illinois’s ‘revenge porn’ law to punish her for speaking, and the state is happily obliging.” A First Amendment botch that SCOTUS should correct [Ilya Shapiro and Michael Collins on Cato Institute brief]
- “Reviving the Contract Clause: An Acid Test for Originalism” [John McGinnis]
- “Indiana Supreme Court Applies Eighth Amendment to Curb ‘Oppressive’ Asset Forfeitures” [Ilya Somin in November; earlier on Timbs v. Indiana here and here]
The framers of American government were only too well aware of epidemics as a danger to human life (here’s a list of more than 30 such outbreaks that occurred between 1763 and 1783; Alexander Hamilton and his wife Elizabeth, after both contracting yellow fever and surviving, then underwent quarantine). And American constitutional law has from the outset recognized and countenanced a “police power” in state government during true emergencies to intercept the sorts of otherwise harmless movements and actions that can turn well-meaning individuals into vectors of physical harm to follow citizens. At the same time, as they also knew, freedom would count for little were these emergency powers to set the measure for what government can do to citizens in circumstances short of that dire urgency.
I’m grateful to Ingrid Jacques of the Detroit News for quoting me in her column on this subject yesterday:
“’We have no collective memory of going through this kind of thing,’ says Walter Olson, a senior fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies. ‘It’s an invasion of rights we normally wouldn’t let the government get away with.’
“We’re all getting a crash course on what exactly the government can do in times of crisis. It turns out, it’s a lot….
“… Once the virus subsides, limited??government champions should watch whether all the regulations in effect during the threat go away, too.
“’The government must put away these dangerous weapons once the emergency is over,’ says Olson.”
For a sense of the sweeping powers governments sometimes assert in the name of quarantine, isolation and lockdown—definitely not meant as an endorsement—check this New York Times account. (It at least quotes a former NSC official who says “The American way is to look for better outcomes through a voluntary system.”)
Because courts applying constitutional law tend to treat government power as at its legitimate zenith during a “hot” emergency, and (this is nothing new) grant maximum short-term deference to the authorities at such times, ordinarily robust constitutional rights bend at least until the immediate threat to life has passed.
Freedom to assemble and freedom to worship are central to the First Amendment, yet courts have upheld and would uphold bans on religious and political assemblies in times of epidemic. Second Amendment rights that courts would ordinarily enforce, such as to operate a gun store or get processing for a required permit, may also be suspended without a short-term judicial remedy. Indeed, the judicial remedy needed to enforce any right may fail if the courts are closed owing to an epidemic.
True emergencies do not last. When this is over, as it will be, both the courts’ vigilance and ours must be directed toward making sure the government promptly and fully relinquishes whatever emergency powers it has flexed. We will face a body of opinion intent on pressing that exact advantage, as in this Chicago Sun-Times column from Friday:
If we can fight a war against an enemy we can’t see or touch, we certainly could use draconian measures to fight the gun violence in our neighborhoods as well.
Watch out for this kind of thinking. We’re going to hear a lot more of it.
[cross-posted from Cato at Liberty]
- “On free speech in and after pandemics, the United States demonstrates the right approach and China the wrong — in fact not just wrong but deadly.” [my new post at Cato]
- “Can the Government Just Close My Favorite Bar?” [Keith Whittington on the “police power” in constitutional law; similarly Elizabeth Joh via libertarian legal scholar Randy Barnett]
- “Singapore, Taiwan and Hong Kong have brought outbreaks under control — and without resorting to China’s draconian measures.” [Benjamin J. Cowling and Wey Wen Lim, New York Times]
- “Stop It With the Coronavirus Curfews Already” [Matt Welch]
- House-passed bill includes liability protection for medical mask makers [Michael Carroll, Legal Newsline; Steven Nelson, New York Post; earlier]
- How to answer the glib one-liner “There are no libertarians in a pandemic”? [Bonnie Kristian, The Week; Keith Whittington] Turn it around: “There are only libertarians in a pandemic.” [Nick Gillespie]