The COVID-19 pandemic has triggered many largely unprecedented government actions, by which officials at all levels grasp for temporary powers.
Some of these actions began as suggestions by governments—guidelines for movement and behavior. Those suggestions, however, quickly became mandates, violations of which were punishable by law in some cases, begging the question—is this even constitutional?
After all, throughout history crises have been used all too often by government officials to secure more power and control, and they must be kept in check. See the book Crisis & Leviathan, by Robert Higgs, for an examination of the startling way this pattern has played out in the past. For a current example of authoritarian power plays attributable to the pandemic, one only needs to look to Western Europe; we should not see ourselves as immune to such an overreach now so common across the Atlantic.
Thankfully, this vulnerability is not being ignored. State overreach is on the Department of Justice’s radar. Earlier this week, Attorney General William Barr called some of these restrictions “burdens on civil liberties” in an interview with radio host Hugh Hewitt. Furthermore, if states continue these strict orders despite declining case numbers, the DOJ says it will not hesitate to take legal action.
The DOJ is continuing to watch these mandates closely, and if they see states going too far they will lean on the governors to readjust. If that fails and members of the public file lawsuits, Barr explained, the DOJ will file statements of interest and side with the plaintiffs. That said, the DOJ hasn’t been totally innocent of overreach in the name of pandemic response. According to reports from POLITICO the DOJ is seeking the authority to indefinitely detain Americans.
Likewise, the strict social distancing rules put in place by some states are not going unnoticed by the White House. President Donald Trump stood by his tweets to “LIBERATE” Michigan, Minnesota and Virginia, in response to each state’s strict orders
Recent measures by state government leaders in Virginia, Minnesota, and Michigan have led to protests as residents become frustrated with the most extreme regulations. Michigan Governor Gretchen Whitmer, once considered a potential running mate for Joe Biden, released strict restrictions last week, which caused a severe backlash. Among the orders, Whitmer required big-box stores to close sections “dedicated to carpeting, flooring, furniture, garden centers, plant nurseries, or paint,” aka, non-essential products.
Several thousand people gathered at the capitol in Lansing, MI, last week, with signs calling for an end to the shutdown. Business owners held signs defending their need to be open and operational in order to survive.
In Minnesota, protesters outside the Governor’s mansion called to “Liberate Minnesota” and reopen small businesses so people can provide for themselves and their families. Michele Even, the protest organizer, said people want their “rights restored.”
On Wednesday, April 22, ReOpen Virginia organized a drive-in protest, and Virginians called on Governor Ralph Northam to bring the state economy back. The group’s Facebook page has over 30,000 members and describes itself as “A grassroots group of people and small business owners that want to get back to work!”
These movements have not been unopposed, and they have, in fact, been used as political ammunition against President Trump by rival politicians and late-night show hosts alike. Stephen Colbert, as an example, has expressed his outrage: “To be clear, Trump is now encouraging people to protest his own recommendations—that’s how much he needs to hear a chanting mob.”
On the other side of the crisis, some states are releasing overly trepidatious plans to reopen. Governor Ned Lamont of Connecticut said in a briefing last week that plans to reopen include “voluntary” quarantines potentially enforced by cell phone technology and medical surveillance programs.
Eliminating the sale of home improvement equipment and tools will not eradicate this virus. Shutting small businesses down for so long that they have to become dependent on government bailouts or even declare bankruptcy, won’t either.
Using the backstop of the country’s state of national emergency, state government officials are issuing orders that, if not unconstitutional, are certainly unethical. Connecticut’s proposal to monitor those in quarantine via cell phone technology looks like a violation of the Fourth Amendment. Some orders are leading to the closure of gun and ammunition stores, toeing dangerously close to violating the Second Amendment.
It is imperative that such overreaches be checked by citizen engagement, while also being sensitive to those who have genuinely been affected by the COVID-19 pandemic.
The DOJ and White House have been very encouraging with their stand for the constitutional rights of the American people and with their public declaration of their willingness to take swift action.
People want their livelihoods back. And don’t be mistaken—this will be the issue in November that determines for many voters whom they will support at the polls.