California’s shutdown orders are totally unconstitutional

By Jim Breslo

President Donald Trump is rightly talking about when we can reopen the country for business, noting that we cannot allow the cure to become worse than the disease. However, Trump does not have the keys to the shop. It is the country’s governors and mayors. Thus far they have not been expressing the same sentiment. If they do not loosen their shutdown orders within a reasonable time, we may have to turn to the courts. It turns out that many, if not all, of these orders would likely be struck down as unconstitutional.

The federal government thus far has only issued “guidelines,” not enforceable orders. Many states and cities, however, have issued enforceable orders whereby violation subjects one to fines or imprisonment.

Mark Meuser is a constitutional law attorney and former Republican nominee for California secretary of state. He reported this week on my Hidden Truth Show podcast that the California Constitution does not permit state officials to order every resident, regardless of their individual health condition, to “self-quarantine” or “shelter in place.”

Article I of the California Constitution reads: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Most state constitutions contain similar language.

Neither the governor nor the mayors have the authority to suspend the state constitution, regardless of the emergency. According to Meuser, state officials may declare a state of emergency, and may quarantine individuals known to have the virus or known to have been in contact with those who had the virus pursuant to the state’s health and safety laws. But a sweeping ban prohibiting people from leaving their homes, according to Meuser, is a clear overreach. It arguably violates numerous parts of Article I, such as Californians’ “inalienable right” to be “free and independent,” enjoy “life” and “liberty,” to “acquire, possess, and protect property,” and pursue “happiness.”

California’s Appellate Court ruled on a case brought soon after the time of the Spanish Flu, stating, “A mere suspicion [that someone is infected], unsupported by facts giving rise to reasonable or probable cause, will not justify depriving a person of his liberty under an order of quarantine.” [Ex parte Arata (App. 2 Dist. 1921) 52 Cal.App. 380, 198 P. 814.]

Granted, the case involved imposing a quarantine on a single individual, not on the entire populace. But, think of it this way: If state or local officials required that just you stay home, even though you do not have the flu and have not been in contact with someone known to have the flu, your reaction would likely be, “You can’t do that!” Well, the directive is no more constitutional if it applies to everyone like you. It may seem more “fair,” and not violate the equal protection clause, but it would still equally violate individual liberty. A government violation of individual constitutional rights does not become less violative simply by applying it to more people.

Meuser argues in the interview that the orders are also a clear violation of the constitutional right to “protect property” since Californians are being prevented from tending to their property unless it happens to be deemed “essential.” If a Californian cannot visit, let alone operate, one’s business, it cannot be protected.

Mayor Eric Garcetti’s order requires “all residents of the City of Los Angeles to stay inside their residences.” The order expressly prohibits, “Travel to or from a vacation home outside the City.” In other words, Angelenos are prohibited from going to their own garage, getting in their own car and driving it to their own vacation home. Such conduct, according to the order, is punishable by “fine or imprisonment.”

The orders may also violate the United States Constitution. The First Amendment prohibits both state and federal government from “prohibiting the free exercise” of religion or “the right of the people peaceably to assemble.” Clearly, the orders prevent people from engaging in religious gatherings or joining in any group activity. Since the bans are not narrowly tailored to those with the virus or known to have been subjected to it, they likely violate the First Amendment. Further, the orders violate at least the intent of the Fifth Amendment, which provides, “nor shall private property be taken for public use, without just compensation.” Shutting down businesses for the public good arguably requires the state to provide compensation to those businesses.

It is certainly up for debate whether shutdown orders in California, New York and other states is the smart thing to do. It seems that about half of people support them, and half do not. They are wreaking economic havoc on businesses and employees, while at the same time no doubt slowing the spread of the virus. Only with time will we be able to know whether the trade-off was worth it. We make similar trade-offs between freedom and health all the time. The most obvious example being the choice to allow people to drive automobiles despite the fact that they cause about 40,000 deaths every year in the U.S. Importantly, the coronavirus has killed far less than that worldwide, yet we are restricting people to their homes, a far more restrictive measure than prohibiting people from driving.

But whether the trade-off is smart or not, it is irrelevant to the question of whether it is constitutional. The orders clearly are not. State and federal constitutions provide a vital backstop to protect the people against government overreach, which often comes at times of crisis. We saw this happen after 9/11. It is human nature to panic and to overreact out of fear. The Constitution, which we all swear an oath to by nature of being citizens, stands on guard to protect us against such overreach in times like this. This is not the time to abandon it.

Listen to the interview with attorney Mark Meuser:

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