Is the government abusing power during the COVID-19 pandemic? | Bruce Ledewitz

Protesters gather at the state Capitol in Harrisburg on Monday, April 20, 2020 to protest the state's actions to contain COVID-19. (Capital-Star photo by Stephen Caruso)

In recent days, protesters decrying government “tyranny” have demonstrated in several states with some of the strictest shutdown orders, and, primarily, Democratic governors, demanding an immediate end to COVID-19 restrictions.

Bruce Ledewitz (Capital-Star file)

Demonstrators in Michigan, Minnesota and Virginia were encouraged by President Donald Trump, despite federal guidelines released by his Administration that counsel against immediate relaxation of the shutdown.

Demonstrators descended on the state Capitol in Harrisburg on Monday, where they made similar demands.

Partisanship aside, the question remains, has government at different levels abused its power during the pandemic? From a strictly legal perspective, the answer is, probably not. Or at least not in the general sense that the protestors are raising.

Although every state has a different legal regime, State courts during the crisis have either deflected general challenges to stay-at-home and closure orders by governors or have upheld them.

Pennsylvania is a good example of this trend.

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On March 22, the Pennsylvania Supreme Court refused to take jurisdiction over a general challenge to Gov. Tom Wolf’s  March 19 order closing non-essential businesses.

Then, on April 13, the court narrowly took jurisdiction over a series of challenges to the shutdown and upheld the governor’s orders under the state’s general police powers and statutory provisions authorizing emergency disaster measures. A three justice partial dissent, written by Chief Justice Thomas Saylor, would have treated the governor’s actions as “presumptively valid for now,” allowing more specific challenges to go forward in the lower courts.

Pennsylvania is also an example of the flexibility of the shutdown orders in light of constitutional issues. Gov. Wolf modified his order to allow lawyers to continue to work, leading the Court to dismiss that challenge as moot, and relaxed restrictions on the sale of firearms after Justice David Wecht’s concurrence in the March dismissal raised a question about the constitutionality of blocking all access to guns.

It is not surprising that the courts would step carefully in the midst of such a national emergency as the spread of COVID-19.

In his famous dissent in Korematsu v. U.S., the case that upheld the relocation of Americans of Japanese heritage in WW II, Justice Robert Jackson wrote that while courts should not interfere with orders justified by military necessity, they should not uphold them either.

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Measures of quarantine have routinely been used in American history and if this national shutdown is unprecedented, the size and nature of this threat are unprecedented as well. It may be that the orders of some governors have been unnecessarily restrictive or have lasted an unnecessarily long time. But poor judgment is not tyranny and excessive caution is not illegal.

Could the orders of the governors in many states shutting down most businesses and ordering people to remain at home be criticized as interfering with the authority of the federal government? After all, President Trump claimed at one point that his authority over reopening the country was “total,” even though he later relented and said he was leaving the matter up to the governors.

It is a close question whether Congress could authorize the President to take control of all economic and travel activities in America in a non-military emergency. Congress lacks a national police power, but does control interstate commerce.

But there is no question that without such Congressional authorization, the President has limited power to act on his own.

In the 1952 Steel Seizure case, the United States Supreme Court reversed President Harry Truman’s seizure of the steel mills after a strike threatened domestic steel production during the Korean War. Since that case, the assumption has been that Presidential emergency measures without statutory support are limited to strictly military necessity. Since Congress has not acted, it is unlikely that President Trump can do so unilaterally.

On the other hand, if President Donald Trump were to issue an order reopening businesses in particular states or regions, that order, even if unlawful, would probably be treated by the courts as a defense in any effort to enforce state level closures. Citizens are not required to be constitutional scholars deciding who has jurisdiction. Trump may have practical power, even if not legal authority.

The significant legal issues that do arise under state shutdown orders concern more particular rights. Quarantines for disease justify limits on movement and activity. But they do not justify restricting speech.

In the current crisis, three particular constitutional rights have raised issues: the right to bear arms, the right to the free exercise of religion and the right to an abortion.

In terms of firearms, Wolf decided not to press the matter in the face of judicial resistance. In the absence of threats of violence, as opposed to threats from disease, it is likely that the constitutional right to bear arms means that some access to the purchase of firearms must be respected even during a large-scale business shutdown.

In terms of religion, the failure of some governors to treat worship as an essential activity reflects a callous indifference to constitutional rights. Keeping grocery stores open while closing churches suggests that man does live by bread alone. But that is not the American tradition.

Undoubtedly, houses of worship must follow social distancing rules. But restrictions on automobile gatherings on Easter morning, for example, were plainly government overreach.

Finally, several states with histories of anti-abortion efforts have tried to shut down abortion clinics under the rationale that abortions are elective surgeries. Cynically, in these same states, such abortions, if temporarily postponed, would later be banned as coming too late in the pregnancy.

A related debate unfolded in the Pennsylvania state Senate on Tuesday as lawmakers sent Wolf a bill that expanded telemedicine, but constrained access to medical abortion. Wolf has said he will veto it.

As long as Roe v. Wade is the law, there is a right to abortion in the early stage of pregnancy that cannot be taken away. Even in the emergency, courts have generally blocked these state efforts.

Though we may be frustrated by orders to wear masks that don’t protect, closures of liquor stores when a government monopoly cannot keep its own website open and a shutdown the economic consequences of which may cost more lives than are saved, we can at least take comfort in this—we have not lost our liberty. At least not yet.

Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page.  Listen to his podcast, “Bends Toward Justice” here.