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Constitutional or not? Protesters and professors debate rights amid COVID-19 related shutdowns

QUESTIONS — Protesters gather outside of the Ohio State House in Columbus on Monday. -- Associated Press

While protesters across the country defy stay-at-home orders to defend their freedoms at anti-quarantine rallies, constitutional law professors say the cases they are trying to bring against governors probably wouldn’t hold up in court.

Protesters in the state capitals of Maine and Pennsylvania congregated this past Monday, demanding that governors end the stay-at-home orders aimed at lessening the spread of COVID-19. The protests followed the lead of similar rallies in Ohio, California, Colorado, Kentucky, Maryland, Michigan, Minnesota, North Carolina and Virginia.

Groups organizing the rallies have called for the governors’ restrictions to end this Friday, but many governors are extending the stay-at-home orders because they say the measures are working to flatten the curve and lessen the spread of the coronavirus. Last week, Maine Gov. Janet Mills signed a proclamation that extended Maine’s state of emergency through May 15. On Friday, Michigan Gov. Gretchen Whitmer said her order, which was set to expire on May 1, will be extended until May 15, and that everyone entering a store must now wear a mask.

Those organizing and attending the rallies, many of whom were openly carrying firearms, say they are within their rights to peacefully assemble, and they believe the governors are abusing their power and causing economic devastation by requiring businesses to remain closed.

David Milstein of Dimondale, a suburb of Lansing, Mich., attended the “Operation Gridlock” protest in downtown Lansing on April 15. The original plan was for everyone to stay in their cars, he said, but many got out and congregated on the Capitol lawn and the surrounding area.

Milstein, however, stayed in his vehicle, as did thousands of others idling to block traffic throughout the downtown area. Milstein said he understands the need to quarantine the sick and vulnerable, but requiring businesses to close and healthy people to stay home is taking the executive orders too far.

“It was peaceful,” Milstein said of the Lansing rally, calling it the “largest protest I’ve seen since I’ve been in Lansing.”

While he was there to have his voice heard, Millstein expressed concern with the protestors who left their vehicles.

“I didn’t agree with people getting out of their cars,” Milstein said. “It was supposed to be ‘stay in your car’ only. And that’s what I did.”

His main concern is the economy — especially small businesses and employees who are currently out of work.

“I have several friends that are self-employed and employ other people. … Some of those places have fallen down and they’re not going to get back up,” he said.

Milstein added that one industry about which he feels strongly is landscaping. It makes no sense for those types of businesses to not be working, he said.

“I think it’s contradictive,” he explained. “You see state, county and city workers planting flowers and taking care of lawns … but some guy that owns a landscaping company can’t put masks on his people and get out there? I mean, I’ve never really seen landscapers work within 6 feet of each other.”

He said low-income manual laborers are already feeling the brunt of the shutdown.

If it continues, he said, “It’s going to be deadly to low-income people.”

“All the plants are shut down,” Milstein, who works for General Motors in the engineering department, added. “We are furloughed, getting a 25 percent pay cut, and the rumor is we’re going to get laid off. So I think if (Whitmer) extends the order past May, more than likely, me and my co-workers will be laid off until we’re allowed to go back to work.”

He added that he believes the stay-at-home orders are doing the opposite of what they have been put in place to do.

“I think we’re actually prolonging the virus,” said Milstein, who calls himself a conservative.

His solution is to “open stuff back up slowly,” and let people make their own informed decisions.

“If you’re a healthy person, you should be able to make your own choices,” Milstein said. “I think if there’s a vaccine that comes out, everybody should get it. I wear a mask when I go out. I’m 59, slightly overweight, completely healthy and I’m not worried about getting it. If I get it, my body will get through it. I have total confidence in that.”

The Harrisburg, Pa., protest was organized in part by Pennsylvanians Against Excessive Quarantine, a Facebook group that was started on April 14 and, as of Thursday afternoon, had more than 72,000 members. Other groups organizing the rally were ReOpenPA and End the Lockdown PA.

The PAEQ Facebook page features a link that redirects you to the Pennsylvania Firearms Association website. On that site is a call to end Gov. Tom Wolf’s shutdown by passing a resolution drafted by Republican Sen. Doug Mastriano, who rallied the crowd at Monday’s protest. He represents the 33rd District in south central Pennsylvania.

In a phone interview on Thursday, Mastriano, who spent 30 years serving in the Army, said “the mood was really good” at Monday’s rally, adding that he estimated about 3,000 people were there.

“People were exercising their rights,” Mastriano said. “You know, just because the governor issues an emergency order, it doesn’t suspend people’s personal rights. They’re supposed to be God-given rights, as delineated in the Constitution. And so, it was refreshing to see that.”

Also on Monday, Pennsylvania Gov. Tom Wolf extended the state’s stay-at-home order until May 8, and throughout the state, all shoppers are required to wear masks when they enter a store.

“It’s a dangerous thing here when human rights feel like they’re being trampled on with so many restrictions on us,” Mastriano continued. “My solution is Senate Bill 1103,” he said. “I believe the governor’s orders were too haphazard and too draconian.”

Mastriano’s claim is that the term “nonessential” was used loosely and frivolously, as some businesses were allowed to remain open while others were shuttered.

“Six thousand car dealerships in the state, and 20 get the golden ticket to stay open,” he said. “Why can’t they all reopen with the same guidance that the secretary and the governor gave to the 20 that were allowed to be open?”

He said “picking winners and losers” is not fair, and that everyone should be able to work as long as they follow safety precautions and guidelines to keep workers and the public safe.

“The problem is it’s a one-size-fits-all approach by the governor to shut us down in the name of public safety,” Mastriano said.

Using guidelines from the CDC and OSHA, Mastriano wrote SB 1103 to establish strict protocol that must be followed if businesses are allowed to reopen. It also includes what he calls “The Employee Bill of Rights,” which states that if a worker is ill and cannot work, he or she will not be punished for staying home.

“They need to put the power back in the hands of Pennsylvanians to decide, not the governor to decide,” he said. “I don’t think ever since the founding of Pennsylvania as a colony under William Penn, skip to the modern times, never before has a governor wielded so much power. It’s just a catastrophic event for the state. And shame on the General Assembly for surrendering so much power, in an emergency, to the executive branch.”

Pennsylvania Republican State Rep. Aaron Bernstine spoke at Monday’s rally as well.The Western Pennsylvania politician represents Beaver, Butler and Lawrence counties, and he believes that the main issue is reopening businesses safely.

“For the last month, the conversation has been around essential and nonessential businesses, when the conversation really needs to be around people that can work in a safe way,” he said.

He pointed to a bricklayer who works completely by himself.

“That man can, without a doubt, work in a safe manner,” Bernstine noted. “It’s just himself. So there’s no reason we shouldn’t be able to allow things like that. Not only in Pennsylvania, but in Michigan, and numerous other states throughout the country, governors have stepped in and taken a hatchet approach rather than a scalpel approach as to what can be done to make sure that people’s livelihoods aren’t destroyed while still protecting their lives.

“Not only are governors overreaching their constitutional bounds,” he said, “but their actions are actually ineffective.”

At Monday’s rally in Augusta, Maine, hundreds of protesters — some with masks, some without — gathered outside the Capitol and Gov. Janet Mills’ home, holding signs bearing statements that read, “ALL businesses are essential,” and “My Constitutional rights are essential.”

That in mind, the question of which Constitutional rights have been violated and how they have been violated remains one that some citizens ponder.

Is this Constitutional?

Governors have declared state emergencies, and they are acting within their rights, according to the U.S. Constitution, law professors said this week. Their decisions to require business closures, to shut down sections of stores that carry nonessential items, to not allow for congregating or travel within the state, and even to limit things like using motorized boats, are at their discretion during the 28-day emergency period, a Western Michigan University Cooley Law School professor said.

Michael McDaniel is campus dean and a tenured professor in constitutional law at WMU’s Cooley Law School Lansing campus. When asked if anything in Whitmer’s order would infringe on Constitutional rights, he said no.

“It’s very, very difficult to make a case here,” he said.

He said the Bill of Rights applies to the states under the 13th Amendment, but the 14th Amendment drafted after the Civil War in 1868 further clarifies the rights of citizens pertaining to state government.

Section 1 of the 14th Amendment states: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.”

A law, often called the First Civil Rights Act, was passed in 1875 during the Grant administration, McDaniel said.

“It specifically gave individuals a right to sue states for violation of their Constitutional rights,” McDaniel explained.

That’s what some people are doing now, at least in Michigan. But McDaniel doesn’t expect them to win their lawsuits against the governor because the law gives her and any state governor broad power whenever a state of emergency is declared.

“People do see this avenue where they can sue the state,” McDaniel said. “That being said, you still have to have, for want of a better term, a cause of action, a violation of your First Amendment rights. … The First Amendment has a lot of good stuff in there. If you look at it, everybody knows about the right of speech, but there are … six different rights contained in the First Amendment, and it’s all the really good stuff … It’s the freedom of speech, it’s the freedom of the press, it’s the right to petition the government for redress of grievances, it’s the right to peacefully assemble, and it’s also the two religion clauses, that the government cannot establish a religion, and that they can’t interfere with the free exercise of religion.”

He continued, “But none of those is absolute … there are times when those can be limited in some way. Even though you have the right to peacefully assemble, and people were permitted to peacefully assemble last Wednesday at the Lansing Capitol grounds, we can still have some condition so it’s not interfering with other people’s right to be in that same area.”

McDaniel said the government cannot prohibit those rights, “but you can put some limitations on those so that the rights of others are not interfered with. And that is one aspect of what was being done.”

He said one of the lawsuits he was aware of addressed the right of association with other people.

“What a lot of people are talking about is ‘I have this right to go out and sort of have a party with my neighbors.’ And to a large extent, you do. But, there is also the right of the states to protect the safety and welfare of the people,” McDaniel said. “Speaking broadly, this is the primary responsibility of state government.”

When the U.S. Constitution was ratified, the framers specifically left the power of health, safety and welfare with the states, McDaniel said.

“Nowhere in there does it give that power to the federal government,” he said. “So, the president can’t say, ‘I’m telling you, you all have to reopen.’ I think he must have had a realization at some point, from saying he had absolute power, to saying it’s up to the states to do so. He realized that he doesn’t have that power.”

And that broad power falls on the governors as long as they can show that their orders “serve a compelling governmental interest.”

“The state legislature has given the governor very broad powers,” he explained. “Very broad powers, in times of emergency. And under the Michigan Emergency Management Act, the governor can declare an emergency and then take some of these powers … and she can exercise those powers for a period of 28 days. Which is exactly what she’s doing.”

He then explained some of the power outlined in the Emergency Management Act.

“It specifically talks about such things as controlling ‘ingress and egress to and from a stricken or threatened area, removal of persons in the occupancy of premises,'” he noted. “So there’s a strong, very strong and broad power, the way it’s worded, given to the governor by the legislature. Bottom line is, she has these powers. You can make an argument … you can sue the governor for declaratory relief, a federal court, or a state court could declare that a certain law is unconstitutional, and if they do so, then you could enjoin its enforcement. That’s what, I think, some of the lawsuits are trying to do. You certainly don’t get damages and such, for doing so.”

Regarding a lawsuit of this nature, McDaniel said to be successful, only two routes are possible.

“Either you have to demonstrate that the governor, himself or herself, has gone broader than the power given them by the legislature, which, given that broad language, is very, very difficult to do,” McDaniel explained. “Or you have to say that the law itself was unconstitutional … which I think is impossible to do, given the facts so far.”

McDaniel went on to add that the government can still infringe upon a constitutional right if necessary, but only if it is for the greater good. In the case of COVID-19, the greater good is protecting residents from the disease.

Richard E. Levy, distinguished professor of constitutional law at University of Kansas School of Law, pointed to the interest of public health during a pandemic.

He said that while a ban on public gatherings seems to violate the right to peaceably assemble, a court may require the state to provide information proving that it is “necessary to serve a compelling government interest.”

“Certainly preventing the spread of a debilitating and deadly disease is a compelling governmental interest, and there is ample evidence that this danger is real,” Levy said. “A key question would be whether there are alternatives that would be less restrictive or burdensome on the right of assembly.”

He added that adding the requirement of masks and distancing may be a sufficient measure without creating a burden on the right to assemble, but that certain arguments would not hold up in court.

“A further general point would be that courts would likely not be persuaded by arguments that the virus is a hoax,” he said, “that it is not really dangerous, or that it is better to let people get sick and die than it is to limit public gatherings.”

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