By John Klar
The Wisconsin Supreme Court struck down that state’s COVID-19 stay-at-home orders because they “exceeded the executive branch’s authority.” Vermont’s Governor Phil Scott has similarly exceeded his authority, both in extent and duration.
When President Trump announced that the federal government would control the reopening of the nation’s economy, Governor Scott swiftly opposed him:
It didn’t take federal action to spur us into action and it’s not going to be the federal government that determines when we take appropriate steps here in Vermont.
Scott said he would rely on data and public health experts to determine how to slowly resume economic activity in Vermont. Picking an “arbitrary date” for states to reopen would be irresponsible, he said.
Notably absent from this analysis is whether Vermont’s Governor possesses the power to “take appropriate steps,” or what limits (by the Constitution, not federal authorities) there are to what is “appropriate.” This is not an issue for public health experts, or data, or federal versus state powers — it is a legal question that has been persistently ducked.
Governor Scott does not possess unilateral power to institute whatever laws he wishes just by pinning the name “public health” on them. He has imposed the coronavirus restrictions via gubernatorial edict, not democratically-enacted statutes. If the Legislature passed a stay-at-home law, then perhaps that would withstand constitutional challenge, but no such law has been passed — this is all just Governor Scott’s edicts.
The United States Supreme Court ruled in Jacobson v Massachusetts that the state could fine a pastor who refused to receive a mandatory smallpox vaccination, ruling that states possessed the power to curtail individual rights for the health and safety of the public. But, there was no creation of an unlimited carte blanche for Governors to do whatever they wanted in the name of public health — in that 1905 case, there was a statute (a law) which a) had been passed by the legislature with attendant guarantees; and b) could be tested against the Constitution. And, the pastor only lost a $5 fine — Vermont’s businesses are losing everything.
State laws restricting travel, or contact, or the operation of a business, are subject to challenge. Governor Scott has issued a series of Executive Orders — gatherings of 250 people were banned, then 100, then 50, now 10. Restaurants and other businesses were simply ordered to shut down. (It is still unclear whether gun stores are violating the Governor’s murky pronouncements — are they essential services or not?). Governor Scott’s Orders fail to meet constitutional muster.
Vermonters possess a constitutional right to travel. The pursuit of happiness definitely includes running one’s business. Governor Scott has no constitutional power to arrest, incarcerate, or fine someone for not wearing a mask, not staying home, or for opening the doors of their business. If people were charged or fined under his edicts, they could appeal to the Vermont courts, where Due Process, the right to counsel, and other protections would apply (those haven’t been suspended by the Governor… or have they?). And in those courts, constitutional concepts such as “vagueness” could be applied: the State of Vermont would have to demonstrate a sufficient state interest to deprive the citizenry of these numerous rights.
This raises another question in the coronavirus chaos. Any state government (including its Governor) must demonstrate a substantial enough public safety need to justify such broad restraints on liberties. Can Vermont justify these business-destroying measures based on a health and safety argument? The purported justification for these harsh measures — to “flatten the curve” — now seems to have morphed into “keeping everyone from getting sick.” In Governor Scott’s Executive Orders, it is not just the contours of the laws that are vague and unclear — it is the justification itself. This bait-and-switch might prevail in the political world, but not in a court of law.
Governor Scott defies President Trump and says he will decide when Vermont’s citizens’ regain their inalienable freedoms. But Phil Scott never had the right to take those freedoms away to begin with, nor did he ever present the legal argument why he should. The question is not whether the state or federal government controls Americans’ constitutional rights: the question is whether either does.
Medicine does not have all the answers for COVID-19: it certainly doesn’t negate our Constitutions. Whether or not this lockdown is medically advisable, it is not constitutional — the Constitution requires the government to provide clear justification for its actions, and clearly delineate what conduct is proscribed. Governor Scott’s Executive Orders fail on both counts.
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.