State Coronavirus Shutdowns and the Constitution

By Mark A. Klaassen

Over the past two months, the nation has engaged in unprecedented shutdowns in an effort to contain the outbreak of COVID-19. After many weeks of economically crippling restrictions and stay-at-home orders, citizens are beginning to question the justification for these measures and whether continued enforcement unreasonably infringes on important constitutional rights and liberties. These concerns are becoming more acute now that we have a better understanding of the impact on our medical system and the economy across the nation and here in Wyoming.

There is no question that states have broad authority to exercise their police power to implement emergency public health orders to protect against an epidemic of disease. Wyoming Governor Mark Gordon used that authority, as set forth by state statute, to restrict the size of gatherings and close various facilities and businesses, explaining that the restrictions are necessary to protect those at high risk from COVID-19 and to avoid exceeding the capacity of the healthcare system.

The legal framework for evaluating the constitutionality of these measures is highly deferential to the state. The Supreme Court has ruled that when faced with an epidemic, a state may implement emergency measures that limit constitutional rights so long as they have at least some “real or substantial relation” to the public health emergency and are not “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 31 (1905). In evaluating these actions, the federal government and the federal courts may consider whether the measures are arbitrary or oppressive, but may not “second guess” state and local leaders who enact restrictions based upon the advice of public health experts.

While the legal inquiry is deferential, the power of the state is not unlimited. If the public health authority is “exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner,” or goes “so far beyond what was reasonably required for the safety of the public,” the courts may be compelled to “interfere for the protection of such persons.” Jacobson, 197 U.S. at 28.

U.S. Attorney General William Barr has recently issued a memorandum directing the Department of Justice to monitor state orders across the country to ensure they do not unduly infringe on constitutional rights and civil liberties of individual citizens, such as the free exercise of religion and freedom of speech. Consistent with that direction, the Department has filed Statements of Interest in support of private litigants in two cases, one in Mississippi and the other in Virginia, that involve potential infringement of First Amendment religious free exercise rights. The state health orders at issue in these cases appeared to subject religious organizations to less favorable treatment than similarly situated organizations, implicating a heightened level of constitutional scrutiny.

Although we are actively monitoring for potential constitutional violations, including here in Wyoming, the Department is being cautious not to unduly interfere or second-guess the judgment of the various states when it comes to public health. We recognize the legitimate role for the states in responding to the challenges posed by COVID-19. However, federal deference does not prevent private citizens from expressing their views or from pursuing individual legal actions for redress, as they deem necessary.

Precisely where the line exists between a valid exercise of emergency public health authority and one that is arbitrary or unreasonably infringes on individual rights is not always clear. Context matters, and courts will determine these questions based on the facts and circumstances of individual cases. Without bright lines to guide us, we rely on the wisdom and restraint of our elected leaders to carefully evaluate and make decisions based not just on the best available public health guidance, but also the economic, social, moral, and constitutional implications of their actions.

The current pandemic is truly an unprecedented test of our ability to balance public health with the need to preserve constitutional rights and economic livelihood. These are difficult decisions to make, and require our leaders to confront hard truths about the limits of our ability to reasonably mitigate COVID-19 risks while still functioning as a free and prosperous society.

My hope is we continue to show signs of improvement and are able to proceed through the phases of re-opening proposed by Governor Gordon. In the meantime, my office will monitor the situation in coordination with our state counterparts to ensure that rights under the Constitution are not unduly infringed.

Here in Wyoming, we pride ourselves in our rugged individualism and determination. We face challenges with common sense and a willingness to do what needs to be done. Let us hope our response to this virus is no exception.