An Overdue Rebuke to Politicians Who Think Anything Goes in a Pandemic
As recently as early March, I was saying it “seems unlikely” that the United States would respond to the COVID-19 pandemic with lockdowns similar to Italy’s. While we all know what has happened since then, two recent court decisions underline the unprecedented and legally untested nature of the sweeping social and economic restrictions that all but a few states imposed this year.
Last Friday the Michigan Supreme Court ruled that a law Gov. Gretchen Whitmer (D) used to shutter businesses and confine people to their homes except for Whitmer-approved purposes improperly delegated legislative functions to the executive branch. And last month a federal judge in Pennsylvania said that state’s lockdown violated the right of assembly guaranteed by the First Amendment, along with the 14th Amendment’s guarantees of due process and equal protection.
Both decisions uphold a principle that politicians across the country seemed to forget while they rushed to curtail the epidemic last spring. As U.S. District Judge William Stickman put it in the Pennsylvania case, “the Constitution sets certain lines that may not be crossed, even in an emergency.”
In the Michigan case, the relevant line was the distinction between writing the law and enforcing it. During a “public emergency,” a state law enacted in 1945 says, “the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.”
As illustrated by Whitmer’s orders, which dictated when 10 million people could leave their homes, where they could go, what they could do, and whether they could earn a living, the power purportedly gran
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