Terry H. Schwadron
April 19, 2020
So far, a tidal wave of anti-lockdown legal actions is just gathering strength, but we can expect it to hit shortly.
And weirdly, it is coming with the apparent blessing of the U.S. Department of Justice, the agency that you would expect to be blessing government action to contain coronavirus. But then, along with presidential claims of “total authority” that then give way to actual work by state governments, this is a mix of rightist politics, libertarian individualism, religious fervor and legal voodoo, all backed by Atty. Gen. William P. Barr.
It also come as we are seeing emergence of a restive protest across several states against stay-at-home orders of any kind, a coordinated effort now drawing the direct support of Donald Trump — who says he supports governors one day only to also support unmasked, non-social distancing protests the next.
The protests seem a cocktail drawing from objections against state orders altogether mixed with protests about specific recreational shutdowns, protests that reject that there is a coronavirus threat altogether and protests that are just plain selfish, resistant to the notion that one person’s freedom is abutting another’s right against contagion.
There are lawsuits in local courts as in Pennsylvania, where the Blueberry Hill Public Golf Course & Lounge is challenging Gov. Tom Wolf’s lockdown order shutting non-essential businesses as unconstitutional. In New Jersey, New York, Georgia and California, gun stores sued for exemption from stay-at-home orders. And in Kentucky and Mississippi, there have been lawsuits over allegations that states were singling out church groups for unconstitutional attention.
In Michigan and other states, we are seeing odd street protests — conducted mostly from inside cars with a lot on honking around the state capitol — largely by self-identified Donald Trump loyalists to say that lockdowns have gone too far.
Although I often align with efforts towards individual rights, I’m having difficulty with these challenges. After all, your liberty in movements and gatherings has a limit when it runs in my susceptibility to contagion, right?
Do we really have a societal problem here in understanding “public” welfare? Yes, that line in the Declaration of Independence, which never mentions pandemics, promotes the pursuit of Life and Liberty equally. But why are we talking about legalisms and the Constitution when what we should be talking about it common sense and Science?
An article appearing in Just Security, which examines law and security policies, detailed the history of such legal challenges of emergency powers from the Civil War forward. Declaring martial law and suspending habeas corpus laws drew tons of legal challenges that finally were resolved by congressional action to legally protect officials and moving the cases to federal courts.
While the circumstances are different, the article argues, states should be prepared for substantial legal challenge over orders stopping work or setting curfews or ordering people to stay home. Donald Trump has ceded these powers to the states, who “have been forced to exercise emergency powers while he criticizes from the sidelines, periodically expressing his impatience with the closing of the economy.”
Trump’s “increasingly confrontational mode with the governors already sends an ominous signal that may influence the attitude of judges in the burgeoning litigations,” the article noted. Attorney General Barr hs been forceful in stating concern about “draconian” lockdown orders, promising that his department will “be keeping a careful eye” on whether states violate Americans’ constitutional rights through public health measures.
Clearly it is impossible not to see politics playing an ugly, if confusing role in all of this. Trump is proving he is using the coronavirus outbreak to promote his own reelection image by doing things like arranging for his signature on aid checks and demanding full attention for daily briefings that can run for two hours at a time. He is rewriting the history of the failures of his administration to make himself look good.
Now people saying they are his followers are arguing that they have the right to get sick, and to make the rest of us sick as well. It is difficult to see this as a positive political move.
In the Kentucky case, Judge Justin Walker, whom Trump has nominated to a seat on the U.S. Court of Appeals for the District of Columbia Circuit, “unleashed a rhetorical fusillade against a local mayor for allegedly prohibiting drive-in church Easter celebrations.” As it turned out, the mayor had not actually issued any such prohibition and was barred from participating in the case.
Indeed, I would ask the Department of Justice how it would defend the government from lawsuits from families with deaths who say delays and failures to act contributed to those deaths.
The Trumpists are taking both sides of these questions about executive powers and individual liberty.
The same Trump who argued he has “total authority” also has a Justice Department that argues against state and local executive lockdown orders.
The same Trump who wants centralized power in the White House is leaving the hard work to governors and mayors.
The same Trump who says everyone who wants or needs a virus test can have one says testing is unneeded to open the country.
Just wake me when we decide whether we are asking for communal sacrifices in the name of contagion or whether we want to argue about individual rights, like the right to abortion, the right to buy marijuana, the right to live in a country where you grew up despite your parents’ legal immigration status.
In the meantime, please hand me my mask.