The severe restrictions on social and economic life to which states resorted in response to the coronavirus pandemic have rolled across the country in waves for the better part of a year. What we euphemistically refer to as “lockdown” has existed in degrees—loosening and tightening, for the most part, along with conditions on the ground. As COVID-19 caseloads begin to rise again heading into the fall, lockdowns are once again making a comeback. But as states reassume a cautious posture seven months into this emergency, the legality of those orders could be called into question. And while states have broad authority to impose quarantine-related restrictions on their residents, some of the more draconian aspects of this moment have not survived scrutiny in the courts.
There are those for whom there is no restriction so onerous that it is not justified by the coronavirus outbreak. For them, Michigan’s Gov. Gretchen Whitmer has set an exemplary model. At the outset of the pandemic, Whitmer shuttered businesses, restricted in-state travel for Michiganders with multiple residences, prohibited the use of motorboats, and went to war against landscaping—even to the point of forcing stores that sold essential supplies to close off home and gardening isles. When her constituents rebelled, she warned them that their protestations would only contribute to a punitive extension of these restrictions (a threat that pertained only until protests erupted against police abuses this summer—demonstrations in which she was an active participant).
These targeted measures were justified not just by the urgency of the moment but by their general popularity with voters. What they were not justified by, however, was the law.
Last Friday, the Michigan Supreme Court determined that the sweeping emergency law that empowered Whitmer and has been on books since 1945 was unconstitutional. That 4-3 decision issued by a conservative-dominated court found that the governor could not govern by decree indefinitely and without legislative consent. By contrast, a 1976 law, which provides the governor with the power to issue emergency declarations that provide legislators with a say over their extension after 28 days, is perfectly constitutional.
Democrats may be tempted to see this ruling as expressly political. Indeed, that’s what Michigan Supreme Court Chief Justice Bridget McCormack alleged in her dissent. And yet, the justices unanimously agreed that the governor’s executive decrees issued after April 30 that remain active without legislative input are invalid. We are left to conclude that the logic of the justices’ assault on the state legislature’s delegation of its duties to the executive is unassailable, and that fact is annoying to those who wish it wasn’t.
A similar phenomenon occurred last month in the state of Pennsylvania. There, Democratic Gov. Tom Wolf imposed sweeping pandemic-related restrictions on public and private life, including orders that shuttered all “non-life-sustaining” businesses and required citizens to “shelter-in-place.” While such measures were “well-intentioned,” U.S. District Judge William Stickman IV conceded, “good intentions toward a laudable end are not alone enough to uphold government action against a constitutional challenge.” He added that it is precisely in times of profound urgency that challenges to American liberties arise, but an emergency does not justify the abrogation of constitutional due process rights.
Stickman’s decision rests upon dubious, though not invalid, legal precedents, its critics claim. But more importantly, they contend, it makes containing this virus harder. But balancing competing interests is the province of representative governance, even when striking that balance is hard.
These states cannot claim to be taken by surprise. As early as May, the Wisconsin Supreme Court determined that Gov. Tony Evers’s restrictions on travel, the operation of nonessential businesses, and even movement outside the home infringed upon basic American civil liberties. “This comprehensive claim to control virtually every aspect of a person’s life is something we normally associate with a prison, not a free society governed by the rule of law,” wrote Justice Daniel Kelly in a concurring opinion. Without the input of the legislature, the governor simply cannot extend emergency measures indefinitely.
To this, the governor reacted with indignation. “People will get sick,” Evers responded. “And just because the Supreme Court says it’s okay to open, doesn’t mean that science does,” he later tweeted. Invoking “Science” as though it was a single entity, much less one with controlling legal authority, is a non-sequitur that doesn’t become less inane with repetition.
And yet, the governor’s palpable sense of exasperation is forgivable. His two primary directives—the preservation of life amid a plague and observing nonnegotiable civil liberties—are in conflict. But they always will be. Liberty is a state of risk, and the central proposition at the root of the American civic compact is that you must define your own level of engagement.
It is tempting to attribute these rulings all to executive overreach and legislative torpor. But the problem goes deeper than that. In Pennsylvania, the state Supreme Court crystallized the issue. It struck down a legislative effort to invoke a statutory provision that would have—at least, theoretically—invalidate the governor’s emergency declaration when the Court observed that the legislature had already provided the executive with broad emergency powers. “Current members of the General Assembly may regret that decision,” Pennsylvania Justice David Wecht acknowledged, “but they cannot use an unconstitutional means to give that regret legal effect.”
In the confusion that reigned amid the deadly early weeks of this pandemic, panicked deference to the executive is understandable. Today, more than seven months into this crisis, it is not. Legislative lethargy is a force multiplier in a crisis, compounding a natural disaster by adding a civic dimension to it. The pandemic is scary, and people are scared. But freedoms, once relinquished, are not easily reacquired. State and federal legislators have spent decades divesting themselves of their authority. Perhaps its time they started taking it back.