They Can Do That? The Government, COVID-19, and Limiting Your Movements
The coronavirus has threatened the health and lives and disrupted the daily routines and movements of Californians and people all over the world. At least 68,500 people in America have died from the coronavirus. Most state governors, as well as several Native American tribes, have now issued stay-at-home orders. These orders, intended to limit the spread of the virus among the population, have the unfortunate consequence of nearly stopping all economic activity for many small businesses, such as retail shops, restaurants, bars, and recreation venues, resulting in over 30 million Americans filing for unemployment benefits so far. Parents have quickly become homeschool teachers as their children’s schools have closed. The orders prohibit gatherings of groups of people and close beaches, parks, and other public facilities. As spring temperatures begin to rise and the burdens of staying home mount, Americans naturally feel restless, and some demand to be allowed to resume activities outside their homes. The constraints imposed by governments of all levels have caused some Americans to question the constitutionality and legality of the curtailment of many of their liberties.
Despite a Pandemic, the President Has Limited Powers
Much public confusion concerns who has authority to restrict the public’s movement at this time. President Trump has variously claimed that he has “absolute authority” over when the economy reopens, that he has “authorized” the states to reopen their economies, and that the people should “liberate” their states from their shut-down orders. But the economy and whether anyone returns to their places of business is not something that the President solely, or even primarily, controls.
Under the U.S. system of federalism, powers not delegated to the federal government are reserved to the states and to the people. States exercise what are called “police powers” to regulate behavior and enforce order within state boundaries for the betterment of the health, safety, morals, and general welfare of the state’s residents.
The President cannot order private sector employers in California to reopen their businesses, as it is the California governor, acting under authority from the California Constitution and legislature, who has the power to police the state, not the President. No federal statute gives the President authority to override the lawful decisions of a state’s governor.
However, through an extraordinary maneuver, the President can order certain businesses within the U.S. to accept and prioritize contracts for materials deemed necessary for national defense by invoking the Defense Production Act. The President has invoked this authority, and the administration has executed various contracts, though with less transparency as compared to normal government procurements. Through the Act, the President may also designate materials to be prohibited from hoarding or price gouging. Recently, federal prosecutors filed a criminal complaint against a man in New York for hording large quantities of scarce personal protective equipment (PPE), repackaging them without proper labeling or user instructions, and selling at inflated prices.
During a Pandemic, Civil Rights May Be Lawfully Limited in Narrow Ways
Even when acting within their statutory authority during a crisis, federal, state, and local authorities still face limits imposed by the U.S. Constitution, particularly by the Bill of Rights, on curtailing the civil rights of individuals. Several of these rights have been recognized by the Supreme Court to be “fundamental,” meaning that they require a high degree of protection from government encroachment. Such fundamental rights include the right to freedom of speech, religion, interstate travel, to marry, to assemble, and to vote. Courts apply “strict scrutiny” review of governmental restrictions on fundamental rights, upholding such restrictions when shown to be necessary to a compelling state interest, narrowly tailored to achieving the compelling purpose, and the least restrictive means to achieve the purpose.
In addition to applying strict scrutiny review, courts will evaluate whether government orders are generally applicable. Such orders will not be permissible if they are targeted towards only certain people or groups. For example, a mayor may not order that a mosque be shut down during the pandemic but permit a cathedral to remain open to congregants.
While the right to interstate travel has been recognized as fundamental, this right may be impacted by a state’s exercise of its police powers. Thus far, there does not appear to be any actions taken by states to directly prohibit residents from traveling across state borders. This is so largely because the Commerce Clause of the federal constitution gives the U.S. Congress exclusive authority to regulate the movement between states.
Currently, America’s most scenic roads, such as California’s Route 1, remain open but drivers will find that restrooms, visitor centers, and campgrounds are closed, making such drives less desirable. Demand for domestic passenger flights dropped precipitously in March, causing many airlines to cut service drastically, but not based on any state or federal orders prohibiting travel between states.
In late March, South Carolina Senator Lindsey Graham tweeted that it was “time to consider limiting or banning domestic and international air travel for next 30 days.” The next day, during a press conference, the President alluded to potentially restricting travel between some U.S. cities, but so far has not done so.
Alaska and Hawaii are requiring that all travelers—visitors and residents alike—entering the state via air travel to self-isolate for fourteen days upon arrival. Generally, if a person has contracted COVID-19, they will exhibit symptoms within fourteen days. Given that these orders are generally applicable, they are likely to pass constitutional review.
Florida Governor Ron DeSantis signed an executive order directing any travelers entering Florida airports from an area with substantial community spread, including New York, New Jersey, or Connecticut, to self-isolate for fourteen days. The executive order makes violation of an isolation order a second-degree misdemeanor that could carry a fine and/or jail time. Florida’s order, on its face, distinguishes between travelers from certain regions, and thus is vulnerable to constitutional challenge. However, by the time a legal challenge reaches the court, the restrictions may have already been lifted.
Across California, the various state, county, and local governments have enacted differing orders relating to access and use of the public lands under their jurisdiction, such as parks, beaches, and piers. Access to public lands has not been regarded a fundamental right by the Supreme Court, thereby allowing governments more deference in enacting temporary closures or limited use during a public health emergency.
California is unique in that state law protects the public’s access to over 1100 miles of coastline. California’s state constitution prohibits individuals or corporations from blocking access to the water when it is required for a public purpose. The California Coastal Act declares that the state’s goal is to maximize the recreational opportunities and the public’s access to the coastal zone. It is not clear, however, that this protected right of access for the public is on par with a civil right held as fundamental by the Supreme Court. Even if coastal access in California is a fundamental right, temporary government restrictions during a pandemic may be permissible if a court finds that the restrictions pass strict scrutiny review.
San Mateo County’s stay-at-home order mandates no nonessential travel beyond five miles from one’s residence. Operating under this authority, police officers approached over 400 beachgoers on a recent weekend at Linda Mar Beach in Pacifica, ordering 275 of them to leave based on their admission that they traveled from more than five miles away.
On its face, such an order seems to evidence a discriminatory intent—those who live in houses within five miles of the beach are permitted to surf at Linda Mar Beach, but those who live outside the five-mile radius may not. When the classification of individuals is not what is considered a “suspect class”—meaning a class that has historically endured discrimination—such as African Americans or women, the courts will apply a more deferential standard when reviewing the alleged discriminatory intent of a government order. If one of the beach-goers that was kicked off the beach by police were to challenge San Mateo County’s order, the court would likely uphold the five-mile rule if the County showed that it was rationally related to the interest of limiting the person-to-person spread of the coronavirus.
Initially, Governor Newsom encouraged Californians to get outdoors for exercise and fresh air. His view changed after noting overflowing parking lots and people congregating in groups at parks and beaches across the state. Currently, vehicle access to all 280 state parks is closed. Officials across the state are now encouraging people to get exercise within their immediate communities and to maintain six feet of physical distance from others.
After a particularly crowded weekend when an estimated 40,000 visitors flocked to Newport Beach, Mark Ghilarducci, Director of the Governor’s Office of Emergency Services, sent a letter to the Orange County Board of Supervisors directing the Board to close all local beaches starting May 1, 2020, in concert with the closure of the state beaches. State public health officials assessed that the heavy visitation at beaches created unsafe conditions, potentially worsening the spread of the virus. The hospitalization rate for people with confirmed cases of COVID-19 continues to rise in Orange County. After receiving the letter, the Huntington Beach City Council voted 5-2 to file a lawsuit against the state over the beach closure order.
Access to popular fishing locations in California is also impacted by this pandemic. Recently, the California Fish and Game Commission attempted to hold an emergency teleconference to provide streamlined authorization to the Director of the Department of Fish and Wildlife (DFW) to close the fishing season in certain areas of the state at the request of local officials. Some rural communities have expressed fear that an influx of sport fishers could import the coronavirus within their communities and that the limited emergency services in the counties could be stretched thin. So far, Alpine, Inyo, and Mono counties have urged fisheries regulators to postpone the upcoming spring trout season in those counties. The teleconference, however, was ended within a few minutes, after several members of the public made offensive remarks and wouldn’t allow the commissioners to establish a quorum.
In a subsequent Commission meeting, DFW Director Bonham gave a presentation wherein he described the emergency regulation as “specific and very narrowly tailored,” that it would only be in effect until May 31, 2020, and would only be invoked at the request of counties. The Commission approved the emergency regulation, and the trout season has now been delayed in Alpine, Inyo, and Mono counties.
Conclusion
As public officials continue to implement temporary measures to aid in public health goals, there are likely to be continued calls that such measures infringe upon civil rights, especially as tensions run high and citizens miss access to their normal recreation and activities. It is likely that many of the orders will not be per se violations of the either the federal or state constitution, but rather will be upheld if the court finds that the restrictions are the least restrictive method to stem the spread of the virus in a community. Communities differ in geography, population density, public safety resources, and healthcare infrastructure, and thus practices and orders to enforce physical distancing will differ across jurisdictions. Residents should look to county and local executives, as these office holders have the most authority to police behavior and compliance within our communities during this pandemic.
Kelsey L. Campbell
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630
