By John Klar
Courts in at least five states have now weighed in on the constitutionality of their respective efforts to impose restrictions on fundamental liberties because of coronavirus; in four out of five, the laws were struck down (Oregon’s Supreme Court is taking up an appeal of the recent decision there). In this legal atmosphere, Vermont’s Senate is considering mandatory masks for all Green Mountain State denizens in retail settings.
Vermont Gov. Phil Scott has been self-congratulatory of his patchwork of restrictive COVID-19 restrictions, recently praising Vermont’s response as “the envy of the nation.” But Vermont’s haphazard conglomeration of restrictions has been cobbled together piecemeal, appearing to have sidestepped even a cursory consideration of constitutionality — where were those “stakeholders” when Scott decided to restrict farmers markets in a farming state while milk was being dumped?
The nation may not much envy Vermont’s economy six months hence. Most of its businesses were shut down by the governor’s executive orders, but Walmart (which just reported a massive spike in sales) was permitted to remain open. Restaurants were closed, but McDonald’s hummed along. In the zeal to appear heroic in response to a virus, many Democrat governors (and “Republican” Phil Scott) rushed blindly without regard to business realities. Many workers (and all state workers) have received relief — but not businesses.
A federal district court in Kentucky enjoined Louisville from restricting church services, as did a federal district court in Kansas and a state court in Oregon. The Wisconsin Supreme Court ruled that Gov. Tony Evers “exceeded his authority” in stay-at-home orders. In response, the Wisconsin governor encouraged people in his state to continue “to stay safer at home, practice social distancing, and limit travel, because folks, deadly viruses don’t wait around for politicians and bureaucrats to settle their differences or promulgate rules.”
Unfortunately, economic collapse doesn’t wait around either.
If Governors Scott or Evers had simply issued “encouragements,” there would be no issue of violating the Constitution. But both issued edicts, and in both states fundamental constitutional rights have been impinged. This subjects these orders to “strict scrutiny” by the courts, and explains the “extraordinary remedy” of injunctive relief — a court order barring enforcement of the proposed government action. As one commentator offers:
Government may restrict fundamental rights … only if (1) government has a compelling purpose (or ‘compelling interest’) and (2) the restriction is ‘narrowly tailored’ toward solving the problem. The burden of proof in such cases is on the government.
If Donald Trump commanded all Americans to wear masks, or close all churches, doubtless there would be outcry. But states, the federal government, and localities are all restrained by Constitutional limits. The problem here is that that “compelling interest” has been quite fuzzy — is it to “flatten the curve”? If so, mission accomplished. However, if the goal is to “outsmart and beat this virus” (per Gov.Phil Scott), the government has a problem — such a goal is ill-defined, and the public has not been properly informed of that quest. A second problem arises when sweeping restrictions are vague, broad, or uneven in application — like Scott’s MacDonald’s-favoring, farmer-hurting inconsistencies.
As liberal havens like Vermont leap to impose restraints on the public, they have simply shrugged off traditional constitutional restraints. This will not happen without challenge:
While court cases involving quarantines to control infectious disease are (thankfully) sparse, ‘lockdown’ in its various forms is a species of preventive detention: a restriction on physical liberty without a finding of guilt after criminal trial … even where the government has authority to preventively detain, the Due Process Clause requires that the duration and conditions of preventive detention measures ‘be reasonable in relation to their purpose.’
Two months into this crisis, Americans are rightly questioning the reasonableness of both the duration and the conditions imposed by many state governments, and are asking what purpose they are related to. This is basic constitutional stuff that fear-mongering Democrats seem to find threatening. But the economic threat is as real as the virus, and Scott may not be so good at “outsmarting and beating” that one — what powers will he employ to rebuild a shattered economy?
One Minnesota lawmaker has proposed a statute that would permit businesses who suffer losses due to shutdowns to sue the government for compensation (as in taking cases), and the business owner “has the burden of proving that the loss is due to the executive order and proving the amount of compensation for losses.”
If that law, merely codifying settled constitutional precepts, were widely enacted, governors might think cautiously about sweeping, ill-planned restrictive initiatives. In Vermont instead, the Senate is weighing statewide mask requirements, and two municipalities have enacted ordinances that require masks.
There is perhaps no flatter COVID-19 curve than Vermont’s, and perhaps no economy more effectively flattened.
John Klar is an attorney and farmer residing in Brookfield, and former pastor of the First Congregational Church of Westfield. He is running for governor in 2020.