[Opinion]
Love (of the Constitution) and Liberty in the Time of COVID-19
The role of a lawyer is vigilance.
Written by Elizabeth Brenner
Writing this article in my home office, I look back wistfully at the
carelessness with which I did what was once so mundane: meeting face to
face with a client, going to an office, a courthouse, a grocery store, a
restaurant, a coffee shop. I moved through the world with an ease that I
took for granted.
What was once the realm of the ordinary came to a swift and sharp halt
as cities and states began implementing measures forcing us to stay
home. Beginning in March, most of us could no longer leave our houses
except to perform what the government deemed to be an “essential
activity” or to work in an “essential business.” Cities, counties, and
states issued orders shuttering business, prohibiting public gatherings
and religious services, mandating people to stay inside, and restricting
our contact with one another.
And this is not all. States across the nation passed laws burdening
the right to interstate travel. Many courts ceased all but emergency
hearings, delaying access to justice for tens of thousands, including
the most vulnerable. The Centers for Disease Control and Prevention is
now receiving location data from our cellphones to track the spread of
the coronavirus.1 The government may begin working with
private application developers to use phone-tracking applications to
trace our movements to reduce spread of the virus.
Within a matter of months, the government implemented extraordinary
and unprecedented restraints on many of our fundamental liberties: the
Free Exercise Clause of the First Amendment; the First Amendment right
to assembly; the right to interstate travel under the Commerce Clause;
privacy rights under the Fourth Amendment; and for those lingering in
prisons and jails, the right to a speedy trial under the Sixth
Amendment.
But these are unprecedented times. We are in the midst of the worst
pandemic in a century in which there is no cure; there is no vaccine,
treatment is extremely limited, and the only known sources of prevention
are good hygiene, tracing, and restricting human contact. The virus
itself and the method of spread is not yet fully understood. As of this
writing over 100,000 people have died in the U.S. alone in just a few
months from a virus that seems to be most infectious through droplets in
the air. By acting quickly, our local and state governments limited the
impact of the spread, giving scientists time to better understand the
virus and health officials time to reinforce our health care system,
potentially saving tens of thousands of lives. Swift government action
was literally a matter of life or death.
In the midst of a public health emergency, state and local governments
indeed have the authority to enact measures to protect the welfare,
health, and safety of their residents. What would in other circumstances
be an imposition on constitutionally protected rights is within the
realm of states’ police powers under the 10th Amendment, which include,
for example, forced isolation for public health purposes.2 In
fact, on May 30, 2020, the U.S. Supreme Court in a 5-4 decision
considered and denied injunctive relief against the state of California
for limiting gatherings in churches. Chief Justice John Roberts in his
concurring opinion recognized the uniqueness of our “extraordinary
health emergency” that is “fraught with medical and scientific
uncertainties” as well as the highly contagious nature of the virus,
stating that leeway should be given to states’ power to protect health
and safety.3
When restricting fundamental rights such as those under the First
Amendment, the state must survive a strict scrutiny analysis; the
government must use the least restrictive means necessary to achieve a
compelling government interest. In March, a judge upheld a challenge to
New Hampshire’s statewide ban on gatherings of 50 people or more.
Explaining the clear and compelling government interest, the court cited
the “imminent danger” of the virus stating that it could not “imagine a
more critical public objective than protecting the citizens of this
state and this country from becoming sick and dying from this
pandemic.”4 In the court’s opinion, the fact that the ban had
an expiration date on the restriction helped it meet the
least-restrictive-alternate test.
Governors, including Gov. Greg Abbott,5 temporarily
curtailed interstate travel by imposing a mandatory quarantine on those
arriving from certain states with high incidence of the virus. These
policies, as wise as they may have been given the national health
emergency, implicate our constitutional right to interstate
travel.6 A challenge to the state of Maine’s quarantine was
rejected by a federal court using a strict-scrutiny
analysis.7 The court found that while a fundamental right was
burdened by the travel restrictions, the plaintiffs failed to show a
less restrictive way for the state to reduce the spread of the
virus.8
But not every form of exercise of a state’s police power is
constitutional even in the midst of a national health emergency.
Government action that falls within the rubric of “compelling government
interest” and “least restrictive means” will likely shift as we
understand more about the virus, including means of prevention, and as
we develop new technology and treatments to reduce its effects.
Government imposed restrictions that survive strict-scrutiny analysis
today will likely not meet this standard in the future. Even as states
loosen restrictions, these measures may return with the ebb and flow of
coronavirus transmission.
In this global crisis, we all have a place in public service:
thousands of health care providers risk their lives to save ours daily;
scientists across the globe work at a superhero’s pace for a vaccine;
grocery workers, delivery drivers, and mail carriers venture out into
the world so we can safely access our basic needs from home.
As lawyers, we have a role as well: our job is vigilance. As Thurgood
Marshall once said, “grave threats to liberty often come in times of
urgency.” Power once in the hands of authority can be difficult to
unravel. We witnessed a huge expansion of government surveillance after
9/11 that still exists today. In times of war, there is a delicate
balance between national security and personal liberties. Lawyers have
the unique power—and therefore responsibility—to be sure the government
doesn’t upset or abuse this precarious balancing act.
In late March, Politico reported that in response to the pandemic, the
Department of Justice sought emergency powers from Congress to detain
individuals indefinitely without trial.9 Whether access to
justice, constitutionally protected health care services, or the ballot
box, we must be wary of governmental overreach in times of crisis. As we
continue to grapple with measures to limit the devastating effects of
the virus, it is up to lawyers and policymakers to ensure such measures
don’t have lasting impact on our fundamental rights. Let’s not have to
be wistful about the loss of constitutional freedoms we once took for
granted.
Stay safe out there—and be vigilant. TBJ
Opinions expressed on the Texas Bar Blog and in the
Texas Bar Journal are solely those of the authors. Have an
opinion to share? Email us your letters to the editor or articles for
consideration at tbj@texasbar.com.
View our submission guidelines here.
ELIZABETH BRENNER
is an attorney with Burns Anderson Jury & Brenner in Austin, where
she practices probate and trust litigation, probate administration, and
guardianship. She began her career in public interest work.