Hundreds of cars, trucks, and SUVs descended on Michigan’s state capital Wednesday afternoon as part of a noisy protest against Democratic Gov. Gretchen Whitmer’s social-distancing restrictions that critics say have gone too far.
Dubbed “Operation Gridlock” and organized by the Michigan Conservative Coalition, the protest did just that – creating bumper-to-bumper traffic throughout downtown Lansing as demonstrators blasted their horns, waved Americans flags and hoisted placards deriding Whitmer’s orders and demanding that she reopen the state’s economy.
The lockdown measures are meant to curb the spread of the coronavirus outbreak, but Whitmer has gone further than some other governors — and the backlash in Michigan is among the most heated in the country.
Has Michigan’s governor violated the Constitutional rights of Michigan citizens?
When In Doubt, Check the Law
Benjamin Franklin once said that “those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” But what would Franklin have given up to secure a lot of permanent safety – to stop a highly lethal virus that has already killed thousands of people? Like so much else in our world, his statement now faces a severe test from the coronavirus.
To save lives, all but eight states have already imposed aggressive measures rarely utilized outside wartime. As the death toll climbs, more severe measures may be on the way. Several prominent voices have now advocated the imposition of a nationwide lockdown. A well-known legal academic even suggested a national lockdown should be immune from judicial oversight. And the Justice Department has proposed that Congress grant it oppressive emergency powers.
While the coronavirus is undoubtedly frightening, so too is massive state power used in the name of emergency. We should all be thankful we live in the United States for many reasons, but especially now. We COULD be stuck in Sri Lanka. The government in Sri Lanka responded to coronavirus by imposing a military curfew. Authorities arrested several thousand people for merely leaving their homes during that curfew. Residents worried about whether they had enough food to last until the curfew lifted. Finding oneself in a situation like that in the United States is, at best, a frightening thought. Add to that the fact that if such a thing happens here, it will be the government of the freest country on Earth that has taken away a slew of the most fundamental rights that have for 250 years been solely the right and responsibility of American citizens and NOT Big Brother.
In this country, we are taught to pause when asked to trade liberty for security. So we should take a moment to think about the legal restrictions governing potential lockdowns inside the United States. Could the federal government or a state impose a Sri Lankan-style lockdown to stop the pandemic? Could the courts be excluded from overseeing such emergency action?
What About the Constitution?
Constitutional law provides substantial guidance for understanding the government’s authority to respond to the pandemic. While court cases involving quarantines to control infectious diseases are (thankfully) sparse, “lockdown” in its various forms is a creature of preventive detention: a restriction on physical liberty without a finding of guilt after a criminal trial. Although the Supreme Court has stated that “in our society liberty is the norm and detention, without trial, is the carefully limited exception,” our constitutional system has long recognized several forms of preventive detention as lawful. Most relevant, the state may preventively detain individuals who have a serious mental disorder and present a danger to themselves or others.
In general, any use of preventive detention authority raises three basic constitutional questions. First, does the state have substantive authority in this pandemic to detain someone or some people without a criminal trial? Second, is the state’s exercise of that authority reasonable about its purpose – i.e., are the length and conditions of confinement necessary to address the harm at issue? Third, has the state provided adequate procedures to ensure the detailed plans for the exercise of that authority are met for the particular individual(s) involved?
For a moment, let’s just “suppose” the federal government orders a nationwide lockdown. If that happens, you can bet there will be thousands if not hundreds of thousands of suits and temporary restraining orders filed against all the authorities involved in the lockdown process. If someone were to challenge a lockdown order issued by the government, courts would apply the three principles described above to decide the case. Because a lockdown order restrains physical liberty, the writ of habeas corpus gives courts the final authority to determine its legality. Almost everyone has heard the term “habeas corpus” used often. But few know its meaning. “Habeus Corpus” is a writ requiring a person under arrest to be brought before a judge or into court, chiefly to secure the person’s release unless lawful grounds are shown for their detention. In other words, a person cannot be held for any alleged illegal activity or acts committed indefinitely. That person has a right to appear before a judge or in some court to determine whether being held without a speedy trial should be happening.
Some have suggested Congress should try to exclude the courts from even considering the lawfulness of any lockdown order. That would be a big mistake for both practical and legal reasons. Practically, there is little risk that the judiciary – including the Supreme Court, which has already postponed oral arguments due to the pandemic — will underestimate the threat posed by a coronavirus. Courts have a vital role to play both in ensuring any lockdown preserves our freedom to the greatest extent possible and in reviewing alleged abuses on a case-by-case basis.
Excluding the courts would also be an assault on our most basic constitutional values that could harm our nation for years to come. As awful as it is, the coronavirus pandemic will likely be over in a year or two, but a decision upholding the law permitting the government to imprison anyone without any court oversight based on the state’s claims that the public health requires it could be with us far longer. The Constitution allows Congress to suspend habeas corpus in some instances of “rebellion or invasion,” but the coronavirus is NOT an “invasion.” Though people sometimes speak of a virus “invading” the body, the courts read the Suspension Clause in light of what the Constitution’s Framers believed it meant in 1789. The Framers intended to refer to “invasions” by people, not diseases, as Justice Scalia once made clear in a description of the historical precedents. And while he suggested there that the courts should choose a reasonable legislative judgment about when an invasion has occurred, that precedent Scalia made clear still stands. Remember: long before coronavirus, President Trump repeatedly called caravans of Central American refugees as an “invasion.” If the government tried to close the courts based on claims like that, the judiciary would undoubtedly step in quickly with their authority to prevent that radical step.
How Should We Handle a Lockdown if one Happens?
First, our legislators should right now come to a consensus on what events must be present to justify a national lockdown. They should draft legislation to clarify existing laws as they pertain to this and other future pandemics that might result in a need for a lockdown to save the lives of people. In doing that, Congress should act quickly and as diligently and just speedily as Congress drafted those Articles of Impeachment and tried the President, they should lock themselves away with Constitutional scholars, put aside petty political partisanship, and draft legislation so specific and so detailed that NO court would find any loopholes in what was written and passed. The point often stated that “every bill signed into law is always subject to subjective interpretation” needs to be abandoned in such a process. For once, Congress MUST lay aside agendas of all but one kind: to protect the American people, and not just our health through a lockdown. Undoubtedly, doing so is a necessity, finding political advantages if not. Members of Congress — ALL members of Congress — need to lay aside political party and personal agendas to pass legislation to protect from this and other pandemics while, at the same time, guaranteeing Americans that the rights of ALL citizens will NOT be infringed by such legislation.
Can they do that? I believe they can. I’m not sure how many attorneys serve as members of the House and Senate today. But I know it is certainly a majority. Don’t you think all those lawyers, if committed to writing legislation void of partisanship, could get the job done quickly — IF they want to?
Of course, in the group reading this, some will put another “IF” in an added question. It would then read like this: “IF the pandemic was a trick of nature and not an effort by someone to create chaos and pandemonium during this election year to guarantee there will not be a second Trump term in office.”
I don’t care about any of that! Let’s get coronavirus licked and do it without unnecessarily giving up any Constitutional rights — PERIOD!