Analysis: Is a 'stay at home' order constitutional?
R. Kelly Jordan
Courier Staff Writer
In times of peril or threat, people naturally become more cautious, anxious, protective and wary of anything and everything the peril may entail or threaten what they hold dear.
We want to protect our lives; our families, friends and loved ones; our homes and our rights and freedoms. Perhaps because our lives, families, friends, loved ones, homes and property depend on them so much, we become even more protective of threats to our rights and freedoms.
It is no surprise, then, that questions and opinions have abounded over the constitutionality, or otherwise legality, of our and many other governors’ “stay at home” orders. Especially at a time when so much of society is already on guard with other concerns.
So, are stay at home orders constitutional, or legal? The short, and likely correct, answer is – probably. Maybe not, but they very likely are.
Room for debate
We will examine that more fully below, and we should, because there is plenty of room for debate.
First, we should get one thing very clear; in the very immediate moment, the most important thing to recognize: The police are not our enemy. The police are not legislators or lawyers, and they are not judges – they protect society by enforcing the laws.
Some have opined that sheriffs, deputies, police chiefs and officers, and state troopers should just “clearly see that stay at home orders are unconstitutional,” and refuse to enforce them.
The problem in that thinking, however, is that police don’t get to decide the constitutionality or legality of duly passed laws – they take an oath to enforce the laws that are passed. To refuse to enforce duly passed laws would be a violation of an officer’s sworn oath, and be considered dereliction of their duty or worse.
A legislative body, state or federal, can pass any law it decides to, and a governor or president enacts it by signing it (or it’s enacted by the legislature overriding a veto), but once enacted, a law can only be deemed unconstitutional or illegal or improper by judges. Not by police, nor by the opinions of individuals in society.
Once we accept that, we can examine the constitutionality or legality of stay at home orders. We should – and will – discuss whether such orders conform to the U.S. Constitution, but, because such emergency orders fall under the purview of state police powers, they are generally governed by state constitutions and laws.
State police powers are a state’s capacity to regulate behavior and enforce order within it’s territory for the betterment of the health, safety, morals, and general welfare of its inhabitants.
States have the power to compel obedience to their laws through whatever measures they see fit, provided those measures do not infringe upon any of the rights protected by the U.S. Constitution or their own state constitutions and are not unreasonably arbitrary or oppressive.
A big difference
Some have commented on social media, saying, “Liberty is unconditional,” and “The government can’t strip you of your rights, period.”
Those are generally correct statements in a philosophical sense, but it should be noted there is a big difference between “stripped or taken away” and “restricted or curtailed for a period of time.”
We are all aware, or should be, that the federal and all state constitutions allow for imprisonment or the confiscation of property when a person violates certain laws – so liberty is very much conditional, and the government can restrict your rights. For violations of the very worst crimes, the government can permanently take away your rights by ending your existence.
Since this column is written in Tennessee and intended for a Tennessee audience, let’s examine the Tennessee law.
We can quickly do away with another recent common claim, that Gov. Bill Lee is declaring martial law. In short, he can’t – the Tennessee Constitution forbids it.
As pointed out in a University of Kentucky Law School Journal article, on the power of states to declare martial law, the article points to Article I, Section 25 of the Tennessee Constitution to say martial law can’t be declared in Tennessee.
Article I, Section 25 says, “That martial law, in the sense of the unrestricted power of military officers, or others, to dispose of the persons, liberties or property of the citizen, is inconsistent with the principles of free government, and is not confided to any department of the government of this state.”
So what is Lee doing? In Executive Order 14, signed on March 12, the governor proclaimed a state of emergency in Tennessee, due to the public health threat posed by a coronavirus, and the disease it causes, COVID-19.
The authority to declare such a state of emergency is authorized to the governor by a duly passed statute, Tennessee Code Annotated Section 58-2-107. That law falls under TCA Title 58, headlined as “Military Affairs, Emergencies and Civil Defense,” and with these TCA numbers, you can do a web search and read them yourself.
Title 58, Chapter 2 – which is what we’re all concerned with right now – deals with disaster, emergencies and civil defense, and grants the Governor broad powers during an emergency. It also provides for the creation of the Tennessee Emergency Management Agency.
At the beginning of Title 58, Chapter 2, the General Assembly gives its reason for passing the law, essentially saying that in times of dire emergency, someone has to have the authority to act quickly to help the state and its citizens prevent or recover from as much damage as possible. The normal process of government simply takes too long when lives are at stake.
Under this law, after declaring a state of emergency, the governor can: suspend laws or rules regarding the conduct of state business if necessary to cope with the emergency, order evacuations from certain areas, make orders concerning entry and exit and the occupancy of premises within an emergency area, and take measures concerning the conduct of civilians and the calling of public meetings and gatherings, among other things. A full list of the powers conferred on the governor can be read in TCA 58-2-107, which means Title 58, section 2, subsection 107.
Note that in dealing with the threat posed by COVID-19, the “emergency area” entails the entire state.
At the beginning of each executive order, the governor lays out his reasoning in several paragraphs, often called the “Whereas clauses,” because they generally begin with “Whereas.” Following those comes the list of things actually being ordered. You can read all of the executive orders by doing a web search for “Gov. Bill Lee executive orders.”
Several executive orders regarding COVID-19 followed Executive Order 14, mostly dealing with medical issues and businesses, in an attempt to prevent the spread of the disease.
A growing threat
However, the governor learned that the COVID-19 threat continued to get worse, and affect more and more Tennesseeans, so following CDC guidelines, he issued Executive Order 22, on March 30. This order first “urged” people to stay home, unless they have to go out and interact with others for an essential purpose.
The reason for the order, it says in part in the “Whereas clauses,” is “WHEREAS, because protecting personal liberty is deeply important, this Order is not a shelter-in-place mandate and instead strongly urges Tennesseans to stay at home when at all possible for the protection of themselves and their community.”
It also says, “WHEREAS, because with personal liberty comes great personal responsibility, all Tennesseans must do their part by staying at home whenever possible for a limited period of time to avoid exposure to, and slow the spread of, this virus, which will limit the burden on health care resources and allow normal activities to resume sooner.”
Below the reasons given in the “Whereas clauses,” the first paragraph “urges” people to stay at home, the second paragraph orders non-essential businesses closed and gives a few other business-related restrictions, and below that is a long list of what the government considers “essential activities.”
The list is very long. The list is confusing, and probably rushed so not completely well thought out or organized; it is definitely not communicated well. But remember that it was created at the onset of a unique emergency situation – government has “game planned” situations like this, but reality is usually different than anyone plans.
In any event, no list can provide every single person with every single possible event or circumstance they can safely do during this emergency – the key here, as mentioned in the “Whereas clauses” that most don’t read, is to use common sense, and try to distance yourself from others as much as possible.
Except people didn’t, and the threat grew larger.
So, on April 2, the governor signed Executive Order 23, which caused the current cries of “martial law” and questions of constitutionality and legality. The order amended paragraph 1 of Executive Order 22, to now say people are “required” to stay at home instead of “urged” to stay at home, except when engaged in essential activities.
It is also important to note that both versions clearly say the order is temporary and for a “limited period of time,” meaning just until the emergency is over.
This is not martial law, and it is also not a medically ordered “quarantine or isolation;” martial law is forbidden in Tennessee and medically ordered quarantines or isolation is provided for under a different law. Quarantines and isolation orders fall under Title 68’s “Health, Safety and Environmental Protection.”
Emergency powers
What Lee is doing is ordering the restriction of movement of citizens using emergency powers granted him by the state legislature – a duly enacted law. Is it possible the law that allows him to do that is unconstitutional or illegal, or do his orders go farther than the law allows?
As said before, those questions can only be answered by judges, but nothing that can be easily found in the Tennessee Constitution contradicts the law, or Lee’s exercise of it. There are no easily found court precedents in the Tennessee Courts of Appeals or Supreme Court either, so it’s not a slam-dunk easy answer either way.
Further, since situations differ, where a law may stand in one situation but not another, court precedents can be misleading – so, the question of the constitutionality of this law, under these exact circumstances, likely won’t be answered unless someone affected by it challenges it in court. That is not an easy or inexpensive proposition; such a challenge generally takes years and teams of lawyers.
Still, considering the Tennessee Supreme Court took the unprecedented step of ordering all in-person court hearings to stop during the COVID-19 threat, except for emergencies and to protect civil rights, that should be a strong signal of the likelihood of winning that battle.
What about the law being an affront to the U.S. Constitution? For the same reasons as laid out regarding its constitutionality under the state Constitution, it’s not an easy answer, and there are precious few precedents. No precedents exist for cases exactly like this.
What we do know, however, is that the U.S. Supreme Court has generally been very lenient on what would usually be seen as “infringements of rights” during emergency situations, so long as measures taken aren’t “arbitrary or capricious.”
In other words, for something like this and given the seriousness of this situation, the U.S. Supreme Court will likely allow it so long as the governor can provide a good reason, and show that what he did was not meant to punish or harm anyone, but rather to truly protect society from an imminent threat.
That’s part of the reason for all those “Whereas clauses” – another part is to inform the public why he’s doing what he’s doing.
It helps if he can show that the best “experts” agree that what he ordered done would be likely to work, and with COVID-19, the best experts around the world, including here in the U.S., are recommending exactly what Lee is doing. Some are even recommending more drastic measures.
Conclusion
So, are stay at home orders constitutional, or legal? The short, and likely correct, answer is – probably. Maybe not, but they very likely are.
What we can know for certain is that law enforcement is doing their duty and following their oath to enforce a duly passed law – a law likely few actually want to enforce.
At the same time, they’re trying to protect everyone’s health – so if they tell you to go home, unless you want to fight it in court where you’ll almost certainly lose, how about doing everyone a favor and just saying, “Yes officer – I will. Thanks for looking out for me.”
(Ed. note: R. Kelly Jordan is a 2007 graduate of Florida International University College of Law, where he earned a Juris Doctorate and studied Constitutional law.)
