CNN political analyst Sarah Isgur recently joined Pelican Institute General Counsel Sarah Harbison on the PeliCast to discuss whether state and local governments’ emergency responses to the COVID-19 outbreak pass constitutional muster.
In New Orleans, Mayor LaToya Cantrell issued an executive order on March 16 cancelling all public and private gatherings. Governor John Bel Edwards followed suit on March 22, handing down a Stay at Home order for the entire state. Stay at home orders are effective in flattening the curve, but are they constitutional?
The short answer is, yes. “If you look up the definition of police power, the first thing that gets listed is public health,” Isgur explained on the PeliCast. The police power allowing a governor, mayor, or parish president to respond to an emergency or public health crisis is enshrined in the Louisiana Health Emergency Powers Act.
It may come as a surprise that the law in this area is well-settled, even though it may appear to tread on the rights of freedom of association and the free exercise of religion. The stay at home orders are neutral laws of general applicability, which means the recent executive orders ban all large gatherings and don’t just target religious services.
Additionally, these stay at home orders would likely pass strict scrutiny analysis. “At the front end of the pandemic, the police powers are at their strongest, so the means can be at their most restrictive,” Isgur said. This means that as we become more successful in “flattening the curve,” the conditions under which the restrictions are justified may no longer exist.
If it seems that the government has nearly unlimited power over our lives and private enterprise, the Fifth Amendment to the U.S. Constitution may provide a reprieve. The Fifth Amendment requires the government to compensate property owners for seizure of their property. Pennsylvania recently became the first state to have a job creator challenge a governor’s order to close all but life-sustaining businesses. The Pelican Institute will keep monitoring the situation, as more businesses in other states are likely to file challenges of their own.
Once this crisis has passed, we should evaluate our response and consider how we might properly address the next disaster. In the meantime, we should look for opportunities to cut red tape that may not be needed, even under normal circumstances. With that in mind, the Pelican Institute prepared a list of Dos and Don’ts for our lawmakers to consider in response to COVID-19.
For now, we should all look to find ways to support the businesses that remain open and cheer for those that find novel ways to respond to this pandemic. And please don’t forget one of the most important things you can do in this time – wash your hands.