Constitutional Law, Coronavirus, Denver, Exclusives, Featured, Rob Natelson, Uncategorized

Natelson: Denver’s lock-down order probably unconstitutional

On March 23, the City of Denver issued a “stay at home” order designed to check the spread of COVID-19. The order prohibits travel and most business and recreational activities, subject to a long list of exceptions. It suffers from serious constitutional defects and should be challenged in court.

As a preliminary matter, I should say that, like many bureaucratic pronouncements, this decree seems to have been thrown together by people with inadequate understanding of the complexities of life and under political pressure.

For example, it defines as “essential activities,” and therefore exempts, “Skilled trades such as electricians and plumbers.” The exemption appears under an “infrastructure” heading, but the wording suggests the trades are exempt without regard to the kinds of jobs the tradesmen are working on. So, is the skilled trade of a TV repairman included? What of a carpet layer? Is a trained legal secretary a member of a “skilled trade?” These questions illustrate some of the order’s drafting defects.

Some exemptions in the order are clearly political rather than heath related. One example is the flat exemption for the mass media (presumably so politicians stay on their good side). Another is for visits to liquor stores and marijuana shops that practice social distancing (presumably so politicians stay on the good side of people who like such substances). But if liquor stores and pot shops that practice social distancing are okay, then why can’t we go to cigar dens or museums or concert halls that do the same?

As a practical matter, the notion that a politician or bureaucrat can distinguish essential and non-essential trades is fanciful. The economy is highly interdependent. Essential personnel and activities rely on “non-essential” personnel and activities in ways few career government people can fathom.

Some parts of the order are simply incoherent. For example, it provides that “All individuals anywhere in the City and County of Denver . . . are ordered to stay at their place [sic – should be “places”] of residence.” Well, that makes sense if you are a Denver resident. But how can non-residents who happen to be “in . . Denver” be “ordered to stay at their place[s] of residence” if they have no residences in Denver?

Now, as to the constitutional issues. They come in two categories. The first involves the scope of the work and travel bans. The others are more specific.

To understand the “scope” issues, you need to know the following:

* The Supreme Court holds that the right to travel is a “fundamental” right—akin to freedom of speech or religion.

* The Supreme Court cases that rule on the subject involve the right of interstate travel. But local travel would seem to be even more important to most people in daily life than interstate travel and entitled to even more constitutional protection.

* For a government regulation such as Denver’s to substantially burden a fundamental right, the Court states that the government must prove the regulation is “narrowly tailored to advance a compelling governmental purpose.” In other words, the government must prove (1) the goal is very important (such as national defense) and (2) the method the government uses to advance that goal is closely targeted to it. You can’t use a shotgun to kill an ant.

* Thus, when government tries to impede the right to travel, the government carries the burden of proving that its goal is “compelling” and that it can’t achieve that goal by narrower means.

Now, let’s agree that fighting the Corona Virus is a “compelling governmental purpose.” Is the Denver order “narrowly tailored” (targeted) to accomplish that goal? Not at all.

As a general matter, we really don’t have proof that stay-at-home orders are effective in controlling the virus. In theory they should be, because they presumably reduce social contact. But Italy has the longest experience with such orders, and according to the Italian Ministry of Health, the contagion rate in that country continues to soar. In addition, confining people to their homes carries some health risks of its own.

But assuming shelter-in-place orders do work, that doesn’t make the Denver order constitutional. It is too scatter-shot. It is under-inclusive in a few places and way over-inclusive in others.

For example, the part of the order limiting mass transportation makes perfect sense: In buses and trains people are often crowded.  But why restrict travel by car, motorcycle, or scooter? Those are solo or small group activities. People don’t get infected across vehicle lines. By banning travel in private vehicles, the order is over-inclusive: It is too broad, not “narrowly tailored.”

The order has other elements of both over- and under-inclusiveness. It is under-inclusive in that some industries or trades enjoy wholesale exemptions (partly for political reasons?) while others—no matter how carefully conducted—do not. Thus, a reporter headed for a crowded news room is covered by the unconditional exemption for mass media. But a custodian is banned from cleaning up an office after business hours are over and Denver residents are prohibited from traveling even to remote, unpopulated areas.

Now let’s look at the other, specific constitutional problems:

Interstate travel: It is exceedingly doubtful that Denver may impose a ban on interstate travel for those passing through on journeys elsewhere. And millions of people do: Denver sits at the junction of I-25 and I-70. The order does have an exception for travel back to one’s home outside Denver. But it needs to contain an exception for anyone traveling through as well.

Interstate commerce. Denver’s order could be an unconstitutional restriction on interstate commerce. Although it exempts “Businesses providing mailing and shipping services, including post office boxes,” it is not clear what “shipping” means. Normal rules of legal interpretation suggest that “shipping” means services analogous to the postal service, such as UPS and FedEx. So is Denver presuming to ban other long-distance trucking through her boundaries? Good luck on that one!

First Amendment Religion Clauses. The order exempts “Faith-based establishments and houses of worship.” I’m personally sympathetic to that. But the Supreme Court has said the First Amendment bans discrimination in favor of religion as well as discrimination against religion. Why is a gathering for, say, Muslim worship protected while an assembly of a humanist group such as Ethical Culture is not?

It is a maxim of life that people tend to over-estimate the value of their own activities at the expense of those they don’t know or understand. Hence the saying, “If your only tool is a hammer then every problem looks like a nail.”

The “hammer” of government officials consists of law, regulations, and decrees—actually more of a sledgehammer. In this case, Denver has used that tool improperly: It has overreacted and has potentially violated the constitutional rights of city residents and of millions of others.

Rob Natelson served as a law professor for 25 years, and is nationally known as a constitutional scholar. He is Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver, and author of The Original Constitution: What It Actually Said and Meant (3rd ed. 2015).

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