Litigating Over Lockdowns

According to the Brussels Times over 240 Belgians, mostly from the business community, are suing Bill Gates, the Belgian government, and British epidemiologist Dr. Neil Ferguson over their existing Covid-19 lockdown measures. For context, AIER has covered how Bill Gates maintains a strong involvement with groups like the World Health Organization and is an avid supporter of public health projects involving men like Dr. Anthony Fauci and Dr. Ferguson. 

Barry Brownstein sums up Dr. Ferguson’s connection to Gates as well as his relationship to the Belgian lockdown measures he is currently being sued for when he writes

“Neil Ferguson of the Imperial College London had inordinate influence “advising national governments on pathogen outbreaks.” Ferguson listens to Gates, as his center receives “tens of millions of dollars in annual funding from the Bill & Melinda Gates Foundation.

The model Ferguson used to advise draconian lockdowns in response to COVID-19 has been thoroughly discredited both on theoretical and empirical grounds. To err is to be human, but this was not Ferguson’s first disastrous prediction. As AIER president Edward Peter Stringham points out, “Ferguson rose to fame in 2005 when he predicted that up to 200 million people could be killed from the bird flu.” The actual number of deaths was 50.”

The group calls themselves Viruswaanzin, which translates to “viral madness in Dutch. The core of the plaintiffs’ legal argument is that the Belgian lockdown measures have not only caused excessive harm and suffering via economic devastation but relied on faulty information and flawed thinking. The Brussels Times writes that 

“Through their civil suit, Viruswaanzin will argue that faulty prediction models were used by governments to make health policy decisions ‘in a panic’ and will seek to obtain a penalty €10,000 per plaintiff for each day the measures remain in place.”

The plaintiffs also claim that the manner in which information is disseminated has been incredibly biased towards a pro-lockdown stance so an informed decision was impossible. There has been no robust debate over the efficacy and tradeoffs of various lockdown measures, just ad hominem attacks against dissent and marginalization. 

This case is not without precedent, as around the world we see lockdown measures being challenged and lifted through litigation. The Jurist reports on June 4th

“South Africa’s High Court ruled Wednesday that some of the level 3 and 4 lockdown measures put in place to slow the spread of COVID-19 were “unconstitutional and invalid,” ordering a 14-day period to overhaul the restrictions.

At the start of the pandemic, South Africa had the most restrictive lockdown measures, including a ban on alcohol and cigarette sales. The lawsuit, filed by the Liberty Fighters Network advocacy group in May, argued that the ANC government’s reaction to the epidemic violated South Africa’s Bill of Rights.”

This is a common theme especially here in the United States where state governments have overstepped their constitutional bounds and infringed on the most sacred rights of its citizens such as the right to worship, the right to speak, and the right to assemble. Many of these cases have resulted in legal victories for citizens. However, this has only secured basic rights such as being able to go to church. There is still much work to do here in the United States in pushing back on arbitrary and unconstitutional government policies procured under the backdrop of Covid-19. 

An Introductory Legal Background to Lockdowns

The United States legal system is one of the shining pillars of justice in the world despite its flaws. There are few countries where one has the ability to challenge the state and win in its own courts to the extent that it is done here. With that said, there is precedent and rules that need to be respected. Depending on the judge and the case, results can vary. 

Professor Kimberly Wehle and lockdown advocate reminds us in Politico that 

“Much like access to health care, abortion, the right to vote and even freedom from the death penalty—Americans’ constitutional rights are highly contingent on their states of residence. This is by design, as the Constitution’s framers believed that maintaining state sovereignty was crucial to ensuring an accountable government and avoiding an accumulation of power in one place.”

Furthermore, she and other legal minds pro and anti lockdown both point to a 1905 Supreme Court case known as Jacobson v. Massachusetts. This case has been fundamental to public health restrictions set by the state as it created the precedent for the state to enact certain measures that curtail individual liberty in the name of safety. Wehle writes that the court ruled

“In a criminal action against a defendant who refused a smallpox vaccination—that a state can constitutionally “require and enforce the vaccination and revaccination of all the inhabitants thereof” notwithstanding the Bill of Rights. Such a law must be reasonable, not arbitrary, and tailored to the government’s interest in preserving public safety. This category of state power is known as the police power, and it means that states can “enact quarantine laws and health laws of every description . . . to protect the public health and the public safety.”

However, the Pacific Legal Foundation reminds us that although Jacobson sets certain police powers for the government 

“The decision stated that if governments carried out a vaccination order “in such an arbitrary, unreasonable manner, or [went] so far beyond what was reasonably required for the safety of the public,” then the courts would need to “interfere for the protection of such persons.” And in Jew Ho v. Williamson, which nullified a lockdown of San Francisco early last century, an appellate court said “it does not at all follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exertion of the police powers of the state.”

In Jew Ho v. Williamson, certain counties in San Francisco were quarantined due to an outbreak of the Bubonic Plague. The successful plaintiff alleged that the order was not only enforced arbitrarily against persons of Chinese descent but that there was not even a single case of the plague in their area. According to Lexis Nexis,

“The Court held that under the circumstances, the general quarantine of the whole district cannot be continued, by reason of the fact that it was unreasonable, unjust, and oppressive, and therefore contrary to the laws limiting the police powers of the state and municipality in such matters.”

Some rights are held to be more fundamental and protected than others. According to Lexology, as of recently economic liberty has been receiving less protection than personal liberties such as speech, religion, and travel. Even amongst civil rights, there is a hierarchy as the right to an abortion has been ruled to be less fundamental than free speech. This is demonstrated by a recent case in Texas where the court upheld a partial state restriction on abortions in response to Covid-19.

Some Possible Legal Avenues Against Lockdowns 

Although Jacobson sets out the legal precedent for certain infringements on liberty in the name of safety, it also sets out the avenues in which such policies can be challenged. Although courts may exercise different levels of scrutiny and precedent when assessing cases, some basic criteria remain. Rob Natelson from the Independent Institute writes 

“Government may restrict fundamental rights, however, 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.”

Although containing Covid-19 might be a compelling purpose, the use of lockdown measures as they have been employed here in the United States have proven to be inappropriate as well as ineffective. Proportionality is key and shutting down entire state economies for months is an unprecedented move that has little basis in evidence. 

Covid-19 Lockdowns Are Overly Broad and Not Based on Strong Evidence 

Many highly regarded public health experts such as Stanford’s John Ioannidis have spoken out explicitly or implicitly against the use of draconian lockdown measures. Medical journals such as The Lancet have published studies that conclude that many public health interventions are still subject to debate. Although we lack conclusive information on the efficacy of various public health measures, we can still look at other countries that did far better with less restrictive policies. 

Even here in the United States, we’ve had our own natural experiment with stay at home orders with states that did not issue such policies doing far better than those that did. Even amongst states that issued stay at home orders, the results have been highly random, showing little correlation with policy implementation. The data models that were used to inform these lockdown policies, such as those produced by Dr. Ferguson (which were part of the United State’s response), were also wildly incorrect. 

Furthermore, many lockdown orders do not satisfy a discrimination requirement and come off as incredibly arbitrary or too broad. Why are alcohol and marijuana stores allowed to stay open but restaurants and gun stores must close? How come stores in Michigan larger than 50,000 square feet aren’t allowed to sell gardening supplies but they can continue selling other things? Can the governor of Michigan get away with shutting small businesses and condemning anti-lockdown protestors while allowing Black Lives Matter protests?

None of this can be reasonably seen as “narrowly tailored.” 

Furthermore, some lockdown policies that may have been previously justified can no longer be. Ilya Shapiro from the Cato Institute writes 

“As the facts on the ground change, government actions that once were grudgingly accepted now simply don’t pass the constitutional smell test. That’s especially so given the fundamental error that was made in ordering shutdowns based on arbitrary definitions of “essentiality,” as opposed to issuing rules according to the safety of various activities.

With unemployment going through the roof, why shut down landscaping businesses just as spring arrived? Why close outdoor recreational facilities? The benefit of sunlight and exercise outweighs the risk that a contagious stranger will sneeze in your face while you hike or apply mulch.”

Two weeks to flatten the curve sounded like a great idea when it was first announced in March but five months of failure warrants reconsideration.

The Right to Travel and Commerce

When it comes to state travel restrictions such as the erection of checkpoints or outright travel bans such as in the case of New York, there may be some room for a case. The law firm Gibson Dunn writes 

“Quarantine and travel restrictions may also raise related questions under the dormant Commerce Clause, which is more often litigated in the commercial context. Although the Commerce Clause “is framed as a positive grant of power to Congress,” the Supreme Court has “long held that this Clause also prohibits state laws that unduly restrict interstate commerce.” Tenn. Wine & Spirits Retailers Ass’n v. Thomas, 139 S. Ct. 2449, 2459 (2019)”

Gibson Dunn further elaborates that 

“Under Supreme Court precedent, the right to travel is typically applied to an individual who wishes to travel—not necessarily to goods she wishes to transport. But since commercial transport today depends in large part upon the movement of people—from the truck driver to the pilot—restraints on an individual’s right to travel necessarily inhibit the transport of goods.”

Furthermore, an article in Lexology explains that people may be able to sue for 

“Constitutionally guaranteed remedies—like just compensation under the Takings Clause or protection of private agreements under the Contracts Clause. Under the Takings Clause, private property cannot be taken for public use without just compensation… The Contracts Clause prohibits states from passing laws that substantially impair contractual relationships.” 

According to the authors, businesses are already beginning to file lawsuits under the Takings, Contracts, and Commerce Clauses. According to the Mercatus Center, there is a possibility that many individuals such as property owners may be entitled to just compensation for the violation of their rights in the name of public safety. 

The author cites the Fifth Amendment which sets forth just compensation for government confiscation of private property. He also furthers his point with a variety of court cases that raise the possibility that stay at home orders could be reasonably interpreted as a form of government taking in the name of the public interest. The cases cited include Kelo v. City of New London and Penn Central Transportation Co. v. New York City.

The government certainly has the power to curtail freedom in the name of the greater good but there is a process to do so that requires not only certain guidelines but in some cases compensation. 

The Separation of Powers Doctrine

Separation of powers is a constitutional doctrine that harkens back to the days of Schoolhouse Rock and elementary school civics. There are three branches of government: the legislative, the executive, and the judicial. They all have explicit and enumerated powers, nothing more, nothing less. In order for laws to be enforced by the power of the state, they must first be written by the legislative branch. Governors cannot simply make up whatever rules they wish as many are doing now. Judge Andrew Napolitano explains,

“Governors and mayors can make all the dictatorial pronouncements and threats that they wish. But they cannot use public assets to enforce them. And when they seek to use force, those from whom they seek it should decline the offer.”

The Pacific Legal Foundation highlights such a case when they write

“The Wisconsin Supreme Court recently struck down part of Governor Tony Evers’ stay-at-home order because the governor and state Department of Health Services enacted the order without any oversight from the legislature which violated the state constitution.” 

This raises a broader issue that is ultimately one of the greatest questions in regards to Covid-19. Where will this leave us at the end of all this? What we are seeing is an unprecedented exercise of state power notably from the executive branch. Although the court checked Wisconsin, what governors are getting away with completely unconstitutional power grabs?

Judge Napolitano writes 

“Supreme Court Justice Neil Gorsuch has written that the executive branch cannot enforce a law that it has written. If it does, we will have approached tyranny.

Have we approached tyranny already?”

The executive branch cannot just enforce whatever policy it wants. There is a democratic process in which elected lawmaking officials representative of the people grant the power to enforce laws. When this process is violated the rules are no longer legitimate and should be challenged.

Key Takeaways 

Over the past few months, we have seen an unprecedented exercise of state power and the eroding of liberty worldwide as governments indulge in experiments in public safety. In some countries like China, this is nothing new. In others like the United States as well as other constitutional republics, this is an extraordinary and in some cases illegal use of power. 

Nothing in this article should be construed to suggest the points I have made are legal claims that will guarantee victory in a court of law. The only way to be sure is to bring a case before a judge to which some may be more sympathetic than others and the laws differ from state to state. It is also not uncommon for courts to take a widely deferential view of state power and there is no question this legal debate will rage on for years.

However, there is no denying that we have witnessed one of the greatest power grabs in American history, parts of which are blatantly illegal and unconstitutional. Some policies, although constitutional at the outset of the lockdowns, should no longer be viewed as justified in the face of new information. Finally, even if some draconian lockdown measures are constitutional, citizens may be entitled to just compensation. 

The rights guaranteed in the Constitution are not there merely for decoration and warm feelings, nor can we expect the very entity they serve to limit, the state, to protect them for us. Rather they are upheld by a free, educated, and litigious people who guard their liberty jealously. Such resistance is necessary for an accountable and prudent government.

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