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
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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.