Dear Outdoor Recreation Enthusiast,
Your argument that the “stay at home” orders and closures that prevent you from backcountry skiing, or kayaking, or surfing, are “unconstitutional” is lazy. Here’s why the orders and restrictions are probably, but not certainly, constitutional. And if you can’t place your “unconstitutional” argument into the correct constitutional framework, then sit down and lower your voice.
Our Starting Point
First, for the sake of this analysis, we need to accept some things as true. We need to accept that COVID-19 is a worldwide pandemic that is a serious threat to people’s health. We need to agree that carrying and transmitting the virus asymptomatically is common, though we don’t need to agree on firm numbers. We also need to agree that the virus poses a bigger threat to our population if we don’t “flatten the curve” to give our medical resources a shot at treating people. If everyone gets sick at once and we all rush to the hospital, people die unnecessarily because we can’t treat everybody.
If we don’t agree on those points, it’s not worth reading further, because concluding that COVID-19 isn’t a serious threat to public health ends the constitutional analysis.
What’s the Constitutional Basis For These Restrictions?
The State’s police power.
The answer to the question is only a sentence long. But it probably warrants some more elaboration. The police power is the inherent power of the sovereign – in the US, it’s a power held by the states thanks to the 10th Amendment – to make laws necessary to preserve the public health, safety, and general welfare. States commonly delegate this right to local governments. See Police Power, Black’s Law Dictionary (11th ed. 2019).
The police power has deep roots in Anglo-American law. And, given their import to public health, quarantine regulations have long been an example of a constitutional exercise of the police powers. See Thomas Cooley, Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union (1871) (pointing to “quarantine regulations” and related measures designed to protect the public from persons or property “infected with disease or otherwise dangerous.”).
Likewise, the United States Supreme Court has long approved of quarantine regulations as an appropriate exercise of the police power. In In Gibbons v. Ogden, 22 U.S. 1 (1824), Chief Justice John Marshall observed that the police powers, “which embraces every thing within the territory of a State, not surrendered to the federal government,” includes “quarantine laws” and “health laws of every description.” See also Compagnie Francaise de Navigation a Vapeur v. Louisiana State Board of Health, 186 U.S. 380 (1902) (upholding broad quarantine powers of the states).
The 10th Amendment reserves the police power to the states. Pursuant to that reservation, each state has enacted public health acts authorizing the state government and health department personnel to take specified measures to protect the public’s health and safety. Those include quarantine measures in response to a public health emergency, which has happened in Colorado. Again, if you disagree that this is a legitimate public health emergency, and therefore it’s an unconstitutional exercise of the state’s police powers, congratulations! You’ve found your well-reasoned constitutional argument! You can stop here.
But Police Powers Aren’t Unlimited!
But the State can’t do whatever it wants in the name of public safety, can it?
No. It can’t.
An exercise of the police power, like quarantine or stay at home orders, must serve a general public health or safety purpose. As I’ve mentioned already, this is a prerequisite for everything that follows. If you don’t believe COVID-19 poses a significant risk to public health, the analysis ends there.
Next, the exercise of the police power needs to be the “least restrictive means” for the state to pursue its legitimate objective. See Goldblatt v. Town of Hempstead, 369 U.S. 590, 595 (1962). This is where the constitutional rubber often meets the road, so to speak. But note that “least restrictive means” isn’t unbounded – it’s the least restrictive means that still accomplishes the goal. On that basis, it seems like there can be little argument against the state’s ability to quarantine those who test positive for COVID-19. There may be more grey area when it comes to restricting the movement of “healthy” people. But the combination of asymptomatic carriers/transmitters and the current lack of testing makes this a tougher argument for the “but my freedoms” crowd. See, e.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905) (upholding mandatory smallpox vaccination under state police powers). In the end, the law requires “proportionality” – there must be a reasonable relationship between the burdens and the expected benefits. Finding the right balance is tough. Guinea, for example, under-responded to the early days of the Ebola epidemic, then arguably over-reacted when things got worse. See Mark A. Rothstein, From SARS to Ebola: Legal and Ethical Considerations for Modern Quarantine, 12 Ind. Health L. Rev. 227, 254–55 (2015).
Also critical to the constitutional exercise of police powers is the temporal scope of the orders at issue. Emergency measures in response to a specific threat have an easier time passing muster than permanent restrictions.
This is Stupid. The Government is Full of Nazis and I’m Anne Frank
So first, the government may be full of Nazis. Stephen Miller is still a senior policy advisor in the White House. But you’re not Anne Frank. The government isn’t trying to kill you – it’s quite literally trying to do the opposite.
You’re not even Fred Korematsu. During World War II, the U.S. rounded up Japanese citizens – not immigrants, but citizens of Japanese descent – and placed them in concentration camps on the west coast. Even though there was no evidence they were spies or otherwise working against American interests. The United States Supreme Court held that the concentration camps, based purely on national origin, were a constitutional exercise of the State’s war powers. Korematsu v. United States, 323 U.S. 214 (1944), was good law for years before it was finally disavowed in non-binding dicta in Trump v. Hawaii, No. 17-965, 585 U.S. ___ (2018).
But I have a Right to Peaceably Assemble!
Congress shall make no laws abridging my assembly rights! It’s right there in the First Amendment!
Yeah, the whole “shall make no laws” thing isn’t as clear as it seems. First Amendment rights commonly bow to the State’s exercise of the police power. Particularly when your exercise of your First Amendment Rights threaten the health or safety of others, as they do in this sort of pandemic. “Real liberty for all cannot exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.” Jacobson, 197 U.S. at 27. Therefore, in accordance with the social contract which unites citizens of a state, a “community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Id. Despite your First Amendment Rights.
What About the Fifth Amendment!?!
The Fifth Amendment grants a hodgepodge of different rights, including the right to not be “deprived of life, liberty, or property, without due process of law.”
These laws aren’t depriving you of life or property, at least as they relate to outdoor recreation. But what about “liberty?” Doesn’t that include liberty to travel? And kayak or ski or surf?
It does include the right to travel, particularly in combination with the “privileges and immunities” clause. Specifically, the right to travel between states. See Saenz v. Roe, 526 U.S. 489 (1999). But, as with the First Amendment rights, discussed above, the right is not unlimited, and it’s subject to the state’s police power. The limitations on the police power are intended to stop its exercise from treading on other rights, like the right to assemble or travel.
Oh, and bad news when it comes to recreation: the privileges and immunities clause doesn’t apply to recreation at all. In Baldwin v. Fish & Game Commission of Montana, 436 U.S. 371 (1978), the Supreme Court found that a state could discriminate between residents and nonresidents when it comes to recreation, because recreation isn’t protected by the privileges and immunities clause.
But what about the takings clause?
When it comes to recreation, none of these regulations are taking your property. Even if they did, temporary deprivations of property are typically not considered to be categorical takings, even if lengthy. Rather, categorical takings require that the “regulation permanently deprive [the] property of all value.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 332 (2002); see also id. at 341–42 (nearly three-year moratorium on development imposed to conduct an impact study did not constitute a categorical taking).And the broader the shutdown, the less likely it is to constitute a regulatory taking, as the purpose of the Takings Clause is to “prevent the government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Murr, 137 S. Ct. at 1943.
What about Equal Protection?
The Fourteenth Amendment provides for equal protection under the laws. If the river is closed but the bike path isn’t, are you being denied equal protection?
Maybe, but it’ll be a tough road. Because the restrictions are classified as social or economic legislation, they’re subject only to a “rational basis review” under the Fourteenth. In other words, the courts would ask whether “there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 366–67 (2001). It’s the easiest test under the Fourteenth, and one that the government usually passes.
This is a long way of getting to this: there are legitimate arguments to be made that various stay-at-home orders and closures are unconstitutional. But simply arguing that “it’s unconstitutional” or “the Fifth Amendment says I can surf” is lazy and mostly wrong.