President Trump announced yesterday that he is extending the coronavirus guidelines for another 30 days, while expressing optimism that additional extensions will not be necessary. But it will be the nation’s governors and mayors, not Trump, who will decide when to reopen the country. Thus far, instead of guidelines, many of them have issued mandatory stay-at-home orders. If they do not loosen the orders within a reasonable time, the courts may end up having a say. And it turns out that many, if not all, of these orders would likely be struck down as unconstitutional.
Mark Meuser is a California constitutional law attorney and former Republican nominee for Secretary of State. He reported on my Hidden Truth Show podcast that the California Constitution does not permit state officials to order every resident, regardless of their individual health condition, to “self-quarantine” or “shelter in place.”
Article I of the California Constitution reads, “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Most state constitutions contain similar language. Yet 27 states, including New York and California, representing approximately 75 percent of the country’s population, have ordered all residents to shelter in place except those with jobs deemed “essential.”
Neither the governor nor the mayors have the authority to suspend the state constitution, regardless of the emergency. According to Meuser, a sweeping ban prohibiting people from leaving their homes is a clear overreach. “If you do not have probable cause to determine that a person has the virus, you cannot deprive them of their liberties,” he said. “You cannot deprive them of their ability to attain and maintain property, which is a job.”
Of note is the fact that only eight of the 27 governors who have ordered the shutdown are Republicans. Meuser presented his theory that “A Republican governor is more like a parent who has a 23-year-old living at the house, maybe home from college for the summer, versus a Democrat governor is somebody who has a 13-year-old living at the house.”
The orders of these governors and mayors are wreaking economic havoc on businesses and employees, while at the same time no doubt slowing the spread of the virus. Only time will tell whether the trade-off was worth it. But the question remains about whether or not it is constitutional. The orders, according to Meuser, clearly are not. State and federal constitutions provide a vital backstop to protect the people against government overreach, especially in times of crisis.