At least six states have ordered bars, restaurants, and other businesses to close in an effort to contain the spread of the coronavirus. New York has created its first one-mile containment zone, which residents are not allowed to leave and outsiders are not allowed to enter. San Francisco has imposed a shelter-in-place quarantine except “for essential outings.” And Ohio has postponed Tuesday’s primary election, probably until June.
These extreme measures raise important questions about governance in the midst of crisis. Have the local and state governments overstepped their bounds? Must the citizenry give up some of the freedoms they normally enjoy? And how much of this is constitutional?
The answers are complicated, but one fundamental premise remains straightforward: The government exists to secure our rights, and, in a public crisis like the coronavirus outbreak, the steps it takes to secure those rights will be more zealous and often more intrusive.
“In normal times, the protection we need from government is less and the worry of its overreach greater,” said Adam Carrington, a professor of politics at Hillsdale College. “In emergencies, the need for increased action doesn’t change government’s role but only the application of that role to circumstance.”
Take, for example, the states’ actions to close down certain private businesses. Normally, Michigan Gov. Gretchen Whitmer would not be able to order casinos, bars, movie theaters, gyms, and other private businesses to close their doors. In times of emergency, however, the Michigan Constitution does grant Whitmer the power to regulate for the public good, but she must demonstrate that those regulations would protect the health and safety, and thus the rights, of Michigan’s citizens.
Under the 10th Amendment, the U.S. Constitution leaves the possibility of such state authority open to the states themselves. It’s what is often referred to as the “police power” of the states, Carrington said. In the case of business closures, “the argument is that operating your business would do direct harm to the lives and, indirectly, the liberty and property of others.”
“You don’t have a right to use your liberty or property to harm others, even if unintended,” Carrington continued. “Hence, the police power to stop that behavior, including temporary measures like [business closures].”
This “police power” also applies to San Francisco’s shelter-in-place quarantine and New Rochelle’s containment zone.
Ohio’s election debacle is trickier. Concerned about the “health emergency” posed by COVID-19, Gov. Mike DeWine announced on Monday night that his administration would close the polls that were supposed to open Tuesday morning. DeWine does not have the authority to postpone or cancel state elections under the Ohio Constitution, but Ohio’s Health Department Director Amy Acton does have this authority.
Ohio House Speaker Larry Householder has criticized DeWine’s administration for overstepping. He argues that only the legislature has the power to write and amend the state’s election laws. A lower court judge agreed and ruled that delaying the primary would be a “terrible precedent.” The Ohio Supreme Court, however, upheld DeWine’s election postponement.
So, what does all of this mean? Well, first, the debate in Ohio, as messy as it is, is proof that our constitutional system of checks and balances works even under duress. In regards to who is right and who is wrong, the simplest answer is: It depends.
Householder, who, like DeWine, is a Republican (this is not a partisan controversy), is right that only the state legislature has the authority to determine election law. This means that the state legislature will need to work with DeWine and his administration to roll out a legislative plan to address this delay. DeWine does not have the right to executive rule by fiat, and he could have made this process much simpler had he initiated this process sooner rather than closing down the polls in the eleventh hour.
Then again, because of the rapidly changing nature of this crisis, it makes sense that DeWine would take the lead. The executive is supposed to be the point man for quick and decisive action, and that’s exactly what happened here after the CDC released its guidelines for preventing the spread of the coronavirus. There could be a constitutional concern, however, if this primary delay results in voter suppression, Carrington said. That is something the courts must determine as this process moves forward.
Let’s look at one more example. In Champaign, Illinois, some citizens became concerned when its city council passed an ordinance last week reiterating emergency powers already granted in the city’s code. This ordinance provides broad, sweeping “police powers” that include ordering “the closing of all retail liquor stores,” ordering the “discontinuance of selling, distributing, dispensing, or giving away of … firearms or ammunition,” and ordering “city employees or agents, on behalf of the city, to take possession of any real or personal property of any person.”
The Champaign City Council made it clear it has no intention of doing any of these things. But, even so, is the city allowed to enact such an ordinance? Perhaps in an instance of active rebellion or invasion, Carrington said. But, in the case of a public health crisis such as the coronavirus outbreak, these specific powers pose serious constitutional issues.
Even in a pandemic, citizens must be jealous of their liberties, but they must also understand that emergencies in which the public well-being is at stake will require sacrifices. Our constitutional system is well equipped to handle crises such as these, as long as we trust it to work.
