Are Stay At Home Orders Constitutional? | Retired Justice David Souter Joins Decision On Sanctuary Cities
March 26, 2020
LIVE FREE OR DIE?
|Michael Tarm with The Associated Press reports some are concerned that the measures being taken to curb the spread of COVID-19 are worried their civil rights are being undermined. “Growing segments of the U.S. population say state and federal governments are trampling on freedoms central to American life in the name of protecting public health. The case is already being made. A church-goer in New Hampshire says prohibitions against large gatherings violate her religious rights. A Pennsylvania golf course owner argues that gubernatorial edicts shuttering his business amount to illegal seizure of his private property. If civil libertarians aren’t yet sounding alarms, many have their hands hovering over the button.”
THE RULES FOR RULES
|Evan Gerstmann for Forbes considers whether orders from state and local officials for folks to stay at home are constitutional. He says the answer is complicated, and varies between state and local governments and the federal government. “There are plenty of laws on the books that allow for these orders. But even emergency and health-protective laws have to be constitutional. The constitution protects our liberty in good times and bad and it explicitly provides for only very limited emergency power. It only allows the suspension of the ordinary judicial process in the event of war, invasion, or rebellion. Furthermore, this authority is granted to Congress and not to the president (even if he calls himself a “wartime president”) or to state and local governments. So even during this crisis, the states must obey the ordinary constitutional restrictions on their powers.”
NEWSFLASH
|A global pandemic is no time to restrict abortion access, argues Ava Skolnik in The Washington Post. “Some policymakers are using the pandemic as an excuse to try to achieve a political, and perhaps moral, goal that is not currently supported by law.” But Skolnik wants to make very clear that abortion is legal, it is a right guaranteed under the law, and it is an essential, time-sensitive medical procedure — in case anyone may have forgotten any of those realities.
A SLEEPER CASE AT A SLEEPY TIME
|“The Supreme Court, now even more invisible than usual, may seem beside the point these days, although we saw from the batch of opinions handed down on Monday that the justices are still at work. The 11 cases that were fully briefed and ready for argument this week and next will be heard eventually. I want to focus on one of those cases, a largely overlooked religion case that will have a great deal to tell us about the court’s receptivity to the increasingly audacious claims of religious supremacy now hurtling its way.” That’s Linda Greenhouse with The New York Times introducing her column this week in which she takes a look at a case that has petitioners and respondents with fundamentally different views on the primary question of the case. Greenhouse suggests, “The justices’ choice of which question to address will very likely determine the answer they give.”
I'M BACK BABY
|Retired Supreme Court JUSTICE DAVID SOUTER decided to pipe up this week and join a unanimous decision from a 1st U.S. Court of Appeals panel that said the Trump administration’s assault on sanctuary cities in illegal. The decision affirms cities’ right to help unauthorized immigrants avoid federal detention. Mark Joseph Stern with Slate notes, “One retired Supreme Court justice, Souter, has already sided against the administration. The question now is whether five sitting justices will agree with him. These cases are a test of the conservatives’ commitment to upholding the plain text of the law while respecting states’ constitutional prerogative to set their own law enforcement priorities. Immigration advocates can only hope that Souter’s former colleagues share his commitment to the rule of law.”
WHAT'S THE PLAN, STAN?!
|While we still don’t have a clue as to when the justices will resume oral arguments and get back to business considering some of the most important cases of the term, progressive groups are saying their lack of a plan is unacceptable — particularly when justices are supposed to decide on a case about the president’s financial records. With the November election looming, Demand Justice, the Center for Popular Democracy, Common Cause, Indivisible, People for the American Way and Stand Up are demanding to know when the justices plan to decide the disclosures case. Ephrat Livni with Quartz reports, “They ague that the president personally benefits from the high court’s delay and that these cases require prompt action. All the more so now that the government is planning to boost the economy with a $2 trillion stimulus plan that will provide billions of dollars to industry and be overseen by the executive branch.”