Question for any Lawyers...is Shelter in Place Legal

[seldomseensmith]

Curious about opinions on this. I live in a very lightly populated state and am home with my two boys indefinitely. Every day we go jogging, play basketball at the park and play baseball. The rule they have is we don’t touch anything but the ground. If anyone else is on the basketball court we don’t play that day. Doesn’t feel irresponsible. There aren’t signs up saying park is closed.


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[CorbLand]

Curious about opinions on this. I live in a very lightly populated state and am home with my two boys indefinitely. Every day we go jogging, play basketball at the park and play baseball. The rule they have is we don’t touch anything but the ground. If anyone else is on the basketball court we don’t play that day. Doesn’t feel irresponsible. There aren’t signs up saying park is closed.


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Sounds to me like you are doing exactly what has been asked of you.


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[mfllood3800]

Man I didn't realize we had this many lawyers on RS.

 

[MattB]

Just going to quote this in hopes that if people read it twice it will sink in.

Common sense isn't so common anymore.

 

[87TT]

And I am a Lawyer

 

[*zap*]

It is definitely legal to shelter in place....don't need to be a lawyer to know that.....

 

[DenverCountryBoy]

Couple articles from a constitutional lawyer

Natelson: Denver's lockdown order probably unconstitutional - Complete Colorado

The “hammer” of government officials consists of law, regulations, and decrees—actually more of a sledgehammer. In this case, Denver has used that tool improperly: It has overreacted and has potentially violated the constitutional rights of city residents and of millions of others.

pagetwo.completecolorado.com

Natelson: Polis lock-down order adds chaos to unconstitutionality - Complete Colorado

Public Health Order 20-24 is an 11 page, mostly single-spaced mash of bureau-fog.

pagetwo.completecolorado.com

TL;DR
No, it is not constitutional. The orders are too broad and unfocused.

 

[Marble]

I can tell you the shelter in place order is out in CA, but in reality, it's a request for cooperation as a society, rather than a law. The CHP, or any LEO, does not have the power to pull you over without suspicion of breaking a law. The Governor's executive order does not qualify. Now if Marshall law were declared, then yes, they could stop people and cited or arrest them. But IME, LE will have much larger problems if it comes to that.

My guess is someone in Georgia or Alabama without an understanding of the law made some decisions that were not legal, however well intentioned they were.

 

[ThrowawayPNW]

The last thing this world needs is more legislation and potentially slippery slope legislation at that... that being said the laws wouldn’t be necessary if some of these morons would just stay the F home.

 

[Mighty Mouse]

I am just wandering is the shelter in place order constitutionally legal?

A federal shelter in place order would not be constitutionally legal (not that it matters since the federal government has been overreaching its constitutionally-prescribed limits since shortly after the ink dried on the original copy). Such orders issued at a state/local level aren't within the purview of the US Constitution and may (I don't know) be allowed by state constitutions and/or city charters.

 

[Dos Perros]

A federal shelter in place order would not be constitutionally legal (not that it matters since the federal government has been overreaching its constitutionally-prescribed limits since shortly after the ink dried on the original copy). Such orders issued at a state/local level aren't within the purview of the US Constitution and may (I don't know) be allowed by state constitutions and/or city charters.

States cannot outlaw something the Constitution guarantees.

 

[Mighty Mouse]

States cannot outlaw something the Constitution guarantees.

Agreed. What Constitutional guarantee(s) are you referring to?

 

[Dos Perros]

Agreed. What Constitutional guarantee(s) are you referring to?

Right to worship, right to gather to protest come to mind first.

 

[SoDaky]

Sensible people use common sense.Even lawyers.

Red and Blue America Agree That Now Is the Time to Violate the Constitution

People of both parties seem rather okay with undermining core civil liberties in order to fight the pandemic.

www.theatlantic.com

 

[grizz_bait]

Kindly: STAY THE **** HOME. Sincerely, a formerly skeptical nurse that is becoming increasingly disturbed by what's happening on the front lines.

 

[Gatorgrizz27]

Those same parents have every liberty to decide to quarantine themselves from society, just as everyone else does. Unless some fool that has the virus is breaking into their home and spreading the virus to them, everyone has the same liberties to be out and about their normal routines.

My mom is 89, and no one is going to make her stay at home through all this. She's going to go about her normal routines as she always does.........even as a high risk individual. But she certainly has the liberty and right to make her own choices. Are people mandated to quarantine themselves to their homes when flu season hits, even though 10's of thousands die of the flu every year? Of course not........this is America. Or at least used to be.

Exactly. It’s the same as gun ownership. Don’t like guns? Fine, don’t buy one. Don’t want to leave your house? Fine, then don’t.

I’m not saying things should continue as usual with zero compromise, but things are going to be made far worse than the small number of people that die from the virus.

Most everyone would agree that if nobody left their house for 7 days and this would all be 100% over, it would be worth doing. Hopefully they would also agree that if shutting down everything for 3 months would save 1 life, it’s not worth it.

The issue is where the line is between those extremes.

 

[Mighty Mouse]

Right to worship, right to gather to protest come to mind first.

"Amendment 1: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

"Amendment 10: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The Constitutional "guarantee" regarding religion, assembly, petition/protest is that Congress will not restrict those rights (not the states).

A strict reading of the Constitution shows that, with a few explicitly noted exceptions, the US Constitution binds the federal government, not the states. This is a purely academic point since textualism and the compact theory, though most objectively accurate and defensible, long ago lost in the court of popular opinion to the nationalist theory and more lenient interpretation methods (e.g., "living document," stare decisis, incorporation doctrine).

 

[P Carter]

"Amendment 1: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

"Amendment 10: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The Constitutional "guarantee" regarding religion, assembly, petition/protest is that Congress will not restrict those rights (not the states).

A strict reading of the Constitution shows that, with a few explicitly noted exceptions, the US Constitution binds the federal government, not the states. This is a purely academic point since textualism and the compact theory, though most objectively accurate and defensible, long ago lost in the court of popular opinion to the nationalist theory and more lenient interpretation methods (e.g., "living document," stare decisis, incorporation doctrine).

The core rights guaranteed by the federal constitution were applied against the states through the 14th Amendment. So while the 1st Amendment applied to Congress, the rights guaranteed by the 1st are applied against the states through the 14th. Even the most conservatives justices on the U.S. Supreme Court, and even the most strict "textualists," agree on this. Here's the text of the 14th: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

[fatlander]

The core rights guaranteed by the federal constitution were applied against the states through the 14th Amendment. So while the 1st Amendment applied to Congress, the rights guaranteed by the 1st are applied against the states through the 14th. Even the most conservatives justices on the U.S. Supreme Court, and even the most strict "textualists," agree on this. Here's the text of the 14th: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Executive orders are due process of law. . . Until a judge says they’re not.


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[P Carter]

Ok, responding to the original question: I’m a lawyer. Not one that specializes in constitutional law, but I did work for a federal judge on the court of appeals where I helped analyze constitutional questions. And I’ve done one first amendment case in federal court. Here is my off-the-cuff analysis of how federal courts might rule on the issue. (Note: How federal courts may rule does not necessarily equate to “what’s constitutional,” but that’s a separate issue.) You’d also want to carefully consider whether it’s better to bring the case in state or federal court. State courts may be more libertarian on this question. Maybe not.

State and local statutes/ordinances. These orders have been issued by state, county, and city governments, not the federal government. The law of each state is unique on these issues. In my state, I was very doubtful that counties, cities, and mayors had the authority to issue these orders. Their power is usually pretty constrained. However, governors’ emergency powers are usually pretty broad. You’d want to look at the particular statutes, regulations, ordinances, etc. to see if they actually grant the person or entity the power to declare emergency action. It seems that, for governors, there is likely the statutory authority to issue emergency declarations and emergency orders. (That doesn’t touch on whether those orders violate other law; just that there’s authority to issue them in the first place.)

State constitutions. Many state constitutions differ. Some are more protective than the federal constitution. Some have weird, unique protections. Many divide power among the three state-law branches differently than the federal constitutions. You’d want to look closely to see if the state constitution provides a stronger basis for argument than the federal constitution.

Federal constitution. Without a doubt, shelter-in-place orders infringe upon rights guaranteed by the federal constitution. For example, the 1st Amendment right to assemble, to worship, to associate with others (derivative of free speech). The US Supreme Court has also found that the federal constitution protects the right to travel, at least interstate. But that’s not the end of the inquiry. An action that infringes upon fundamental constitutionally guaranteed rights would still be constitutional (or, at least, would not be struck down by a federal court) if it meets so-called “strict scrutiny.” (Note: The fundamental guarantees of the federal constitution apply against the states through the 14th amendment. So the federal constitutional analysis does not meaningfully differ in this context simply because the states are issuing these orders.) That basically means that the action would be upheld if it is narrowly tailored to meet a compelling state interest. I think it’s almost guaranteed that the second requirement is met; quelling a pandemic would be a compelling state interest. The first requirement is where the case would be lost or won. Telling everyone to stay at home is probably not narrowly tailored. But not everyone is being told to stay at home; there are a ton of exemptions in each of these “stay at home orders.” I’m willing to bet that some courts would strike down parts of the orders; they’d basically carve out additional exemptions to make the orders more tailored to the problem at hand. There would likely be dueling expert evidence on what is truly necessary and effective to quell a pandemic. It would be a very interesting case to bring.

You’d also have to think about whether to bring a “facial” or “as-applied” challenge here. In other words, do you argue that the whole order is unconstitutional, period, or do you argue that the order is unconstitutional only as applied to a particular person (like someone who has been arrested, or someone whose business has been shuttered). My sense is that a facial challenge would likely lose. The orders are likely constitutional as applied to some circumstances. But the right as-applied challenge would likely win. A church would be a good plaintiff here, but they’d likely win only as to themselves, not get the whole order thrown own.

My prediction. I would predict that federal courts would strike down some parts of these orders, but only as applied to circumstances that are particularly egregious. I don’t think they would strike down these orders in whole. Remember, courts have upheld very broad exercises of power in wartime, which would be analogous to a pandemic. Like forcibly rounding up and detaining all U.S. citizens of Japanese descent. That decision is technically still good law, though widely reviled (and rightly so).

Hope that's helpful, if not very satisfying.