Are Home Ordinances Constitutional? Experts have questions

Are Home Ordinances Constitutional?  Experts have questions
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Gov. Gavin Newsom. Photo AP.

BY ELAINE GOODMAN
Daily post correspondent

State and county department orders for residents to shelter in their homes to curb the spread of the COVID-19 respiratory illness are fueling debate over whether the measures are constitutional.

States have police powers under the U.S. Constitution that give them the power to protect public health, safety and well-being, researchers say. Yet sweeping measures that keep residents at home for long periods of time could face legal challenges, some say.

The Northern California ACLU said it was monitoring the problem.

“The shelter-in-place orders that have been issued for the entire state of California are clearly a huge and almost unprecedented reduction in our individual civil liberties,” the organization said in a statement. The group noted the “overwhelming support” for action by public health experts “for our collective well-being”.

Six Bay area counties – including Santa Clara and San Mateo – issued an order last week directing residents to take shelter in their homes for three weeks from March 17 in order to slow the spread of the coronavirus. Exceptions are allowed for “essential” activities such as shopping for groceries or looking after a family member. And residents can go to work if their employer provides essential services.

The orders call on sheriffs and police departments to “ensure compliance” with the restrictions. Failure to comply would be an offense punishable by a fine, imprisonment, or both, depending on the orders.

Gov. Gavin Newsom issued a stay-at-home order for residents on Thursday, effective immediately and with no stated expiration date. It includes exceptions for residents who wish to go out and obtain basic necessities such as food or prescriptions, and for those who work in one of the 16 so-called critical sectors.

Newsom said local authorities can enforce their own public health orders which are stricter than the statewide order.

Constitutional right of assembly

The First Amendment to the US Constitution guarantees freedom of religion, freedom of speech, freedom of the press, the right to assembly, and the right to petition the government.

Even though social distancing measures imposed on the public appear to have an impact on the right to assembly, some predict that the measures would be upheld in court.

James Hodge, professor of law at Arizona State University, pointed to the government’s broad powers during a public health crisis. The lawsuits would only stand a chance of success if they called into question “a really egregious practice,” Hodge said, according to an article in the ABA Journal, an American Bar Association publication.

Another law school professor made a distinction between quarantining an infected person and widespread stay-at-home orders issued in the Bay area. The latter will likely face a legal challenge, said Lawrence Gostin, a professor of public health law at Georgetown University.

A “mass” quarantine or lockdown infringes on “the most basic constitutional rights and the right to freedom of movement, the right to freedom to travel,” Gostin said in an interview with National Public Radio.

In contrast, a quarantine order for someone with COVID-19 who poses a risk to the public would likely seem more warranted, he said.

Applying quarantines to stop the spread of disease would likely be seen as an appropriate use of a state’s police powers, according to Damon Root, an editor who focuses on law, politics and history at Reason, a libertarian magazine.

The key questions are whether an order serves a genuine public health or safety objective; and whether ordering is the least restrictive way to achieve that, Root said in an article published last week.

No expiration date

Another problem is the length of the order.

“A perfectly justifiable emergency measure yesterday may become constitutionally suspect tomorrow,” he wrote. “Things are changing and it is essential to return to a normal situation as soon as the crisis has eased or has passed.”

Harvard Law School Professor Glenn Cohen said there have been a number of public health and state policing cases, but the cases are old and the law on the matter is “vague and uncertain ”.

Governments sued over their coronavirus orders should show a compelling reason for their action and that their measures are not too broad, Cohen told Stat News, a medical news website.

Local officials said they did not expect to release citations regarding public health orders anytime soon. In a frequently asked questions article on the coronavirus, the city of Palo Alto said criminal enforcement of health orders would be an “absolute last resort” for the police department.

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