– April 13, 2020 Reading Time: 5 minutes

While presumed experts in Washington look for data that will justify reopening the economy, the third branch of government, the judiciary, has hardly been mentioned in the crisis to date but could play a key role in breaking any political stalemate.

So my spirits soared when I saw a partial headline reading “Coronavirus: Battle Breaks Out As Beach Visits Allowed …” But then I clicked and saw the rest of the headline: “in Northern Germany.”

A real estate agent in Texas filed for a temporary restraining order against his city’s mayor, who ordered a shutdown of “nonessential” businesses while a county order allowed all businesses to remain open. The local judge refused the TRO after the city passed a proper ordinance. Other scattered reports of suits, or their dismissal, have also made brief appearances.

Precious little else appears to be happening on the legal front. Below I list some possible reasons why:

  1. Lockdown orders considered courts “nonessential,” or judges and staff are not showing up to work. Either way, they remain shuttered, mute stone buildings that might soon make the scene described in Ozymandias seem utopian.
  2. Litigants are forced to shelter in place and hence cannot file, which must be done physically.
  3. Court reporters are sheltering in place and nobody in government has an incentive to clue them in.
  4. Americans are “milksops” who do not understand the importance of liberty.
  5. The $1,200 federal payments supposedly heading our way most consider sufficient compensation for damages, at least for now.
  6. Nobody feels they can afford a lawyer because the government “took ‘er jobs.”
  7. Nobody feels that judges, especially local elected ones, will provide relief.
  8. The shelter in place orders are not being strictly enforced and hence do not go beyond what most Americans would be doing voluntarily.
  9. The lockdowns remain a comfortable “staycation” for most, a change of pace that has not yet grown too tedious.
  10. The classic free rider problem: why spend valuable resources getting a shelter in place order removed that will help many people who will never chip in to cover their fair share of the costs.
  11. Fear of becoming “that guy” who placed “the economy” over “lives.”
  12. The Americans who would most like to take this issue right to SCOTUS live in states that do not have shelter in place orders in place and hence lack standing.
  13. Americans believe that shelter in place is the right policy, at least given the nation’s unpreparedness for a disease they believe to be as ruthless, fast-moving, and deadly as a Nazi panzer corps in 1939-40.

Whatever the causes of this uncharacteristic bit of non-litigiousness, Americans should know that ample legal precedents suggest that most shelter in place orders are unlawful and unconstitutional.

Consider, first, that in the eighteenth and nineteenth centuries, when sundry contagions much nastier than SARS-CoV-2 regularly ran rampant, quarantine orders sought to confine only those who were demonstrably sick or, in really desperate situations, those who lived in a specific district overrun by disease (cordon sanitaire). The notion that any US government can prevent citizens from engaging in commercial intercourse simply because they might get sick, or might transmit a disease, is a product of post-9/11 Homeland Defense America. 

Georgetown University law professor Laura K. Donohue laid out the federal government’s pandemic emergency plan in a 2010 paper called “Biodefense and Constitutional Constraints,” available here. The plan readily countenanced home isolation, “particularly where highly virulent or no known vaccination may exist” (4) and, more ominously, contemplated “the precise manner in which the military could be used to impose quarantine in the event of either pandemic disease or terrorist attack” (79).

The closest analogy I can think of are gun control laws that seek to deny Americans access to firearms because they might use them to commit a heinous crime. Such laws run directly counter to the Second Amendment but the federal government allows some states to implement them.

Gun laws and shelter in place orders also flaunt the due process clauses of the Fifth and Fourteenth Amendments, which were designed, respectively, to prevent the federal and state governments from depriving Americans of their lives, liberty, or property “without due process of law.” Of course any law depriving Americans of their fundamental rights triad must be a Constitutional one, not any old thing some legislature manages to pass. (And don’t get me started on the Preamble, which clearly contains an “and,” not an “or,” between “the blessings of liberty” and the rest of the goodies.)

One hopes that somebody someday soon will whisper in President Trump’s ear that he can use the Defense Production Act to put everyone back to work simply by ordering everyone to go back to what they were doing before their state and local governments ordered lockdowns. All business is essential or it would not have existed in the first place. 

Though I hate to say it, we might have to put that tyrannical law to good use because it is unlikely that our hapless Congress will use the commerce clause to end the shuttering of businesses by states and municipalities even though it could, as even the smallest businesses buy or sell goods across state lines, nay international borders (see, e.g., Donohue 44).

If the federal and state executive and legislative branches refuse to stop the socially and economically destructive lockdowns, Americans’ last resort is the courts. Instead of actively filing suit, some might find themselves arrested for such heinous crimes as taking their dog for a walk, standing too close to somebody in line at the grocery store, or trying to earn a living. They, well their lawyers, should know the relevant case law. 

My favorite quarantine case, recently brought to my attention by AIER’s own Phil Magness, is an 1856 New York Supreme Court case called The People vs. Peter W. Roff. (You can download a .pdf of the Surgeon General’s original copy here.)

Roff “knowingly and wilfully” broke a local quarantine regulation that Judge Lucien Birdseye (1821-1896) found problematic, in part because it “sentences all persons, well or sick, whether exposed to infection or not, to an unlimited imprisonment” (17). Sound familiar? So he unequivocally sided with Roff. His conclusion (18) is particularly instructive:

The public health is doubtless an interest of great delicacy and importance. Whatever power is in fact necessary to preserve it, will be cheerfully conferred by the Legislature, and carried into full effect by the Courts.

But it can never be permitted that, even for the sake of the public health, any local, inferior board or tribunal shall repeal statutes, suspend the operation of the Constitution, and infringe all the natural rights of the citizen.

I feel no hesitation in declaring this regulation void. Disobedience to it constitutes no crime. The prisoner is discharged.

Of course we do not live in nineteenth century New York, we live in the legal world described by Donohue. But the constitutionality of the new laws, she notes, “have yet to fall subject to Constitutional challenge” (79). 

Interestingly, Donohue knows about Roff but did not understand that it was likely a test case, deliberately brought. She says Roff did not have enough money to post bail (25) but Roff was one of the officers of a quarantine tug, a boat that moved quarantined ships about New York harbor, and had plenty of work that summer. She also does not know that he was arrested with Joseph Silva (or Silver) and George W. Daley “the noted one-eyed emigrant runner” for “aiding to demolish the barricade erected around the Quarantine Hospital gate” (“The Public Health,” New York Herald, 17 Aug. 1856). 

While both of his accomplices were released on their own recognizance, Roff, or his benefactors, had enough money to hire Edwin W. Stoughton (1818-1882), one of New York’s top attorneys first admitted to the state’s supreme court bar in 1844, to defend him. Or Stoughton, who was so well connected that he later became U.S. minister to Russia under Rutherford B. Hayes and former president Ulysses S. Grant served as one of his pallbearers, took the case pro bono.

The Roff case suggests that we do not need thousands, hundreds, or even scores of Americans filing lawsuits or getting arrested. We just need to get one, backed by the best lawyers money can buy, before a judge who still understands the Constitution. New York might be the best battleground again as the phrase “shelter in place” occurs only once in its laws, as part of the fire code.

Robert E. Wright

Robert E. Wright

Robert E. Wright is the (co)author or (co)editor of over two dozen major books, book series, and edited collections, including AIER’s Financial Exclusion (2019).

Robert has taught business, economics, and policy courses at Augustana University, NYU’s Stern School of Business, Temple University, the University of Virginia, and elsewhere since taking his Ph.D. in History from SUNY Buffalo in 1997.

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