23.5.20

A PANDEMIC DOES NOT SUSPEND THE RULE OF LAW.

Reason's Jacob Sullum writes, "Courts are beginning to recognize that public health powers, while broad, are not a blank check."
In response to the COVID-19 pandemic, state officials have imposed unprecedented restrictions on our liberties and livelihoods, acting on the assumption that they can do whatever they think is necessary to protect the public from a potentially deadly disease. The courts, which were initially reluctant to second-guess state responses to COVID-19, are beginning to recognize that public health powers, while broad, are not a blank check.

The Wisconsin case involved a dispute between two branches of the state government. The Republican leaders of the state legislature argued that Andrea Palm, a Democrat who runs the Wisconsin Department of Health Services, was exercising powers she had never been granted when she ordered the closure of "nonessential" businesses and confined residents to their homes except for purposes she approved, threatening violators with fines and jail.

This case was not simply a partisan spat. It raised the question of whether a single executive branch official can unilaterally criminalize heretofore legal behavior, based on nothing more than her own judgment of what is required to protect public health.

The Wisconsin Supreme Court last week concluded that Palm's order qualified as a "rule" under state law, meaning she could not legally impose it without following emergency rulemaking procedures she admittedly ignored. Those procedures, Chief Justice Patience Roggensack said in the majority opinion, provide "the ascertainable standards that hinder arbitrary or oppressive conduct by an agency," ensuring that the "controlling, subjective judgment asserted by one unelected official…is not imposed in Wisconsin."

Palm argued that her order was authorized by a statute that says her department "may authorize and implement all emergency measures necessary to control communicable diseases." But as Justice Daniel Kelly noted in a concurring opinion, that broad interpretation erases the distinction between the legislative and executive branches.

"Under our constitutional form of government, the Legislature cannot possibly have given the Secretary the authority she believes she has," Kelly wrote. "If we agreed with the Secretary's reading of [the law], we would have to conclude the statute violated the separation of powers by conferring on the Secretary the power to make laws without going through the rule-making process."

In the Oregon case, Baker County Circuit Judge Matthew Shirtcliff concluded that Gov. Kate Brown had violated the statute she cited as the authority for her business closure and state-at-home orders. Under that law, Shirtcliff said in a ruling on Monday, such orders can last no longer than 28 days.

Whether or not you agree with these decisions or the policies they overrode, the principle at stake is vitally important. Even in an emergency—especially in an emergency—government officials are bound by the law.
Exactly. Especially in an emergency. Where governors are issuing ukases that continue the house arrests indefinitely, or until an effective vaccine is found, or the Second Coming, those ukases are not exactly limited in scope and duration, and there is plenty of time for legislatures to go into special session, and the relevant departmental secretaries to issue proposed rules and call for public comment. Not only that, there are enough online conferencing platforms up and running that almost anyone who wishes to submit a comment is likely able to do so.
"If we tolerate unconstitutional government orders during an emergency, whether out of expediency or fear, we abandon the Constitution at the moment we need it most," Texas Supreme Court Justice James Blacklock observed earlier this month. "Any government that has made the grave decision to suspend the liberties of a free people during a health emergency should welcome the opportunity to demonstrate—both to its citizens and to the courts—that its chosen measures are absolutely necessary to combat a threat of overwhelming severity. The government should also be expected to demonstrate that less restrictive measures cannot adequately address the threat."

Whether COVID-19 control measures can pass that test, Blacklock suggested, depends on emerging knowledge about the epidemic. "As more becomes known about the threat and about the less restrictive, more targeted ways to respond to it," he said, "continued burdens on constitutional liberties may not survive judicial scrutiny."
Yes, and it's up to the relevant judges to do their jobs. “I don’t need to hear two days of testimony from a medical expert that if these executive orders aren’t continued the world is going to end,” [Clay County, Illinois judge Michael] McHaney said. “I don’t need to hear that. This is a legal issue, a legal argument on whether this governor had the authority to issue this executive order under Illinois law and pursuant to the Illinois Constitution. Period. That ain’t hard.”

It's also up to the people filing suits to do their jobs.  In Michigan, a suit challenging their governor's authority to issue an order applying equally everywhere in the state failed.
A 1945 law cited by [governor Gretchen] Whitmer, a Democrat, is not limited to regional emergencies and can have no end date, said Judge Cynthia Stephens of the Court of Claims.

The opinion effectively means the governor's orders stand, including a stay-home decree that is likely to be extended beyond May 28.

“It would take a particularly strained reading of the plain text of the (law) to conclude that a grant of authority to deal with a public crisis that affects all the people of this state would somehow be constrained to a certain locality,” Stephens said.

The claims are “meritless,” she said.
In Ohio, also, a judge rules that the relevant public officials must issue proposed rules and seek public comment, and legislatures must act.
Responding to a May 8 lawsuit filed by the 1851 Center for Constitutional Law on behalf of 35 gyms, Lake County Court of Common Pleas Judge Eugene Lucci enjoined Ohio Department of Health Director Amy Acton from penalizing the plaintiffs or similar businesses for violating the lockdown, provided "they operate in compliance with all applicable safety regulations."

In issuing her business closure and stay-at-home orders, Acton relied on a statute that gives her department "ultimate authority in matters of quarantine and isolation." Lucci concluded that Ohio's lockdown does not meet the legal requirements for "isolation," which is defined as "the separation of an infected individual from others during the period of disease communicability," or a "quarantine," which is defined as "the restriction of the movements or activities of a well individual or animal who has been exposed to a communicable disease during the period of communicability of that disease." A quarantine is supposed to last only as long as "the usual incubation period of the disease" — two to 14 days, in the case of COVID-19.

By contrast, Lucci writes, "The director has quarantined the entire people of the state of Ohio, for much more than 14 days. The director has no statutory authority to close all businesses, including the plaintiffs' gyms, which she deems non-essential for a period of two months. She has acted in an impermissibly arbitrary, unreasonable, and oppressive manner and without any procedural safeguards."

Gov. Mike DeWine already planned to let gyms and fitness centers reopen next Tuesday, subject to social distancing and other COVID-19 precautions. But Lucci's injunction adds to the smattering of court decisions recognizing that state officials must comply with the law even when they are responding to a public health emergency.

In this case, Acton purported to criminalize a wide range of previously legal conduct, threatening violators with a $750 fine and up to 90 days in jail. But those misdemeanor penalties are legally authorized only for people who violate orders that fit within the health department's statutory powers. Lucci concluded that Acton's orders did not.

"The general public would be harmed if an injunction was not granted," Lucci writes. "There would be a diminishment of public morale, and a feeling that one unelected individual could exercise such unfettered power to force everyone to obey impermissibly oppressive, vague, arbitrary, and unreasonable rules that the director devised and revised, and modified and reversed, whenever and as she pleases, without any legislative guidance. The public would be left with feelings that their government is not accountable to them."
Yes, and when a government becomes destructive of those individual rights, it is the obligation of the people to alter it.  These governors and departmental secretaries have a better chance of keeping their offices by treating their constituents as citizens with the rights to dissent and to review, rather than as children to be bossed around.

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