Wisconsin Governor Tony Evers’ response to the threat of COVID-19 has included cancelling school indefinitely throughout the state, closing bars and restaurants except for take-out service, and tight restrictions on social gatherings to fewer than 10. The state’s response, like the crisis itself, has moved with enormous speed. At the behest of guidance from the Centers for Disease Control, gatherings and businesses that were permitted on Monday were barred by Tuesday. Is all this legal? Let’s walk through it.
What does the law say?
Can a governor effectively suspend economic activity in a state and impose strict restrictions on public life? The answer is not clear. In our federal system the power to order this type of emergency shutdown has traditionally been reserved to the states. Wisconsin law is not unique, and the governing principles here do not differ dramatically from those that exist elsewhere.
Wisconsin law grants the Department of Health Services (DHS) the authority to “close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics” and “authorize and implement all emergency measures necessary to control communicable diseases.” Other statutes also provide authority including the governor’s power to declare a public emergency and, in such circumstances, to “issue such orders as he or she deems necessary for the security of persons and property.” Other states have similar provisions.
Upon reading these statutes, you might conclude that the Governor can do whatever he wants. But you would be wrong. Any action the Governor takes must also comply with the state and federal constitutions. And there are at least four potential constitutional challenges. Each would have to overcome centuries of law supporting the right of governments to impose quarantines to prevent the spread of disease — recall the story of Typhoid Mary — and even the cordon sanitaire — the centuries old practice of preventing the movement of people to stem the spread of disease. But each would be buoyed by the unprecedented breadth and indeterminate length of the governor’s order. In short, we have never seen anything like this.
It is well accepted that orders of quarantine and isolation may not be “arbitrary, oppressive and unreasonable.” But this is not a very exacting standard of review. A challenger would have to convince a court that there is little or no basis for the order or some aspect of it. While there are anomalies in the order — why is social distancing adequate for retail establishments and not for restaurants? — this would be a tall order, particularly this early in the outbreak.
The freedom of assembly
While I believe that a reasonable case can be made that the Wisconsin Constitution protects the fundamental right to earn a living, there is no clearly established right to run a restaurant or a bar, and there is a long tradition of subjecting such establishments to reasonable health and safety regulations. But the governor’s order prohibits gatherings of more than ten people under most circumstances. Both the state and federal constitution guarantee the right of the people to “peaceably assemble.” How can the governor prohibit gatherings? While the law of assembly is not well-developed, and the right is closely associated with political gatherings, both the United States and Wisconsin Supreme Courts have made clear the right to assemble is fundamental. How can such a sweeping order survive constitutional scrutiny?
Constitutional freedoms are not absolute. Even fundamental rights can be infringed if whatever the state has done is found to be necessary to serve a compelling interest and is narrowly tailored to serve that interest (a standard lawyers refer to as “strict scrutiny”). At least for a time, it is almost certain that a court would find that slowing the spread of the coronavirus is a compelling interest, and that some combination of isolation and social distancing is necessary to achieve it.
Whether an order like Evers has issued is narrowly tailored is another matter. Although courts will not require absolute consistency, the anomalies and exceptions in the current order open it up to some scrutiny.
These issues may become more important as the crisis goes on. But it is unlikely that a court would second-guess a governor now, given the degree of uncertainty and fear that has gripped the nation.
The freedoms of speech and religion
The freedom of speech is at its zenith when political expression is involved. Even if Governor Evers’ order is generally permissible, a harder case would be presented if it were used to prevent a political gathering. Similar complications may be presented by its application to worship services. Under the federal constitution, neutral laws of general applicability are constitutional even if they incidentally burden a religious practice. But as long as there are exceptions — under Governor Evers’ order, gatherings are permitted in retail establishments, hotels, motels, relief facilities, childcare centers, etc. — it may be possible to argue that the bans are not generally applicable.
More fundamentally, some states — including Wisconsin — provide more robust protection for the freedom of worship. In these states, burdens on religious practices are subject to strict scrutiny, and a plaintiff may argue that the existence of exceptions for other types of activities establishes that the limitations on worship services are not necessary or narrowly tailored.
Taking without compensation
Depriving an owner of the use of his or her property can constitute a “taking” that requires just compensation. Temporary deprivations have not been regarded as takings but, as David French points out, it is not hard to imagine the United States Supreme Court re-examining this rule. Orders like this will destroy businesses that have been in families for generations. A successful takings challenge may be an uphill battle but the extraordinary nature of these restrictions may compel a court to re-examine existing ways of analyzing the issue.
I agree with French that, in the near term, legal challenges are unlikely to be successful, although it is possible that certain elements of orders like this can be pared back. But as the crisis wears on, the tension between our constitutional norms and life lived on an emergency footing will become more acute. The longer they last, the more burdensome these restrictions become and, depending on the progress of the virus, the case for imposing them may grow weaker. When pundits tell you that life on lockdown is the new normal, I would take it with a grain of salt. Extreme measures like those ordered by Governor Evers and other officials are unsustainable for a variety of reasons. The Constitution may become one of them.
Rick Esenberg is president and general counsel for the Wisconsin Institute for Law & Liberty.