Posts Tagged ‘WO writings’

Reopen lawsuits, and their mixed outcomes

Lawsuits have been filed in many states challenging governors’ and mayors’ public health orders arising from the COVID-19 outbreak. I’m in the Frederick News-Post with a guest opinion piece on a judge’s rejection of the (unusually weak) Reopen suit in Maryland. Excerpts:

In some other states, challengers have won rulings striking down at least some portions of state stay-home orders. But this suit’s claims failed all down the line, and here’s why….

In Wisconsin, Oregon, and Ohio, challengers were able to convince judges that governors overstepped the authority granted under state emergency laws, which may require, for example, legislative say-so for an emergency order’s extension. But Maryland grants its governor broader power than many other states, one good reason being that ours is not a year-round legislature. The General Assembly has been adjourned for weeks and is not going to reconvene in Annapolis every 30 days — in the middle of a pandemic! — to give thumbs up or down on each Hogan order. Nor should it have to. The judge found Hogan had not overstepped Maryland law….

In some states, challengers have successfully argued that governors’ orders were too restrictive toward churches. Those claims failed here too.

Under the relevant standard, articulated by the late Justice Antonin Scalia in a 1990 Supreme Court opinion, neutral and general laws that burden religion do not violate the U.S. Constitution so long as 1) they are not improperly motivated by a wish to restrict religion, and 2) they do not arbitrarily restrict religious activity when genuinely similar non-religious activity is permitted. This court, like other federal courts, rejected the argument that if stores are to stay open to sell plywood or soft drinks, all other gatherings must be permitted as well. As the judge pointed out, the federal government’s own guidelines designate sale of food and cleaning supplies as essential. And shop-and-leave arrangements can be rationally distinguished from gatherings whose whole point is to congregate closely for a lengthy period. (Religious gatherings have been an important source of outbreaks both in the U.S. and abroad.)

Some other perspectives on Reopen litigation: Bonnie Kristian/The Week quoting me, Ilya Shapiro, Jacob Sullum, Larry Salzman/PLF; Lawfare resources on state emergency authorities and quarantine/isolation laws; NCSL on state law authority.

“…shall guarantee to every State in this Union a Republican Form of Government”

Among the wackier claims put forth in four of the lawsuits challenging governor’s virus shutdown orders is that the measures violate the U.S. Constitution by depriving states of a republican form of government. That’s a rhetorical gesture more than a serious legal argument, both because the orders haven’t deprived states of such a form of government, and because the federal courts in any event long ago made clear that the so-called Guarantee Clause can’t be sued over — it’s a political question and not “justiciable.” I’ve got a new piece at The Bulwark looking at the history of attempts to breathe life into the Guarantee Clause and what might happen if courts ever decided to entertain lawsuits under it.

“Are the Lockdown Orders Constitutional?”

I’ve got a legal explainer up at ArcDigital, my first appearance there. My answer is “Mostly, yes.” You can read it here. From its conclusion:

After the immediate threat to life has passed, both we and the courts must be vigilant that constitutional rights now bent spring back upright, and that governments promptly and fully relinquish whatever emergency powers they have flexed. But we also need to face the facts about this country’s actual constitutional law, which from the Revolution to the present day has been united in treating legitimate government power as at its zenith during a “hot” emergency of deadly contagion.

It can be tempting to spin tales of constitutional law as we might like it to have been, and pass that off as the actual state of the law. We who believe in law as law should especially resist that temptation.

P.S. More sources on quarantine and related public health powers: Mark Miller, Pacific Legal Foundation; Al Tompkins, Poynter; Rebecca Katz et al., Journal of Public Health Management Practice 2018.

More on whether shutdown orders are a taking; WSJ federalism reprint ungated

A month ago I posted about the interesting legal and policy question of whether business closures aimed at preventing spread of the COVID-19 virus should be seen as a taking for which fair compensation is due. I’ve got another round on that subject up now at Cato at Liberty.

In addition, the piece I wrote a month ago for the Wall Street Journal on federalism and the pandemic response is now out from behind that newspaper’s paywall in a Cato reprint.

Small business could use some advance funding. Too bad gift cards are a legal mess.

Gift cards make a nice way to support your favorite business during the pandemic shutdown. They also make a compliance trap that can mire that same business in years of expensive hassle. My new piece at Reason explores the many legal exposures, from ADA lawsuits over lack of Braille translation to class actions over fine print and even exposure to money-laundering liability.

One durable problem, in some states at least, is state unclaimed-property law. Thinking of tossing a gift card into a drawer and never using it, as a kind of tip to an enterprise that’s brought you happiness over the years? Depending on what state you live in, you might actually be tipping your state tax authorities, and laying only future legal hassle on the merchant you wanted to help. I’ve covered state unclaimed-property law both here and at Cato. (More on its intersection with gift cards: Michael Waters, The Atlantic last fall.)

Delaware’s ambitious claims over unclaimed property have resulted in pitched courtroom battles for years, only a portion of which has been over gift cards specifically. Last year a jury awarded the state more than $7 million in a triple-damage unused gift card proceeding against just one national retailer, Overstock.com.

The Blue Hen State had to rewrite its unclaimed property law after a 2016 ruling by a federal court found its existing law a violation of due process and concluded that Delaware authorities had “engaged in a game of ‘gotcha’ that shocks the conscience.” The replacement law, which explicitly lays out a claim to gift cards rather than relying on older and more uncertain language, doesn’t have a long track record yet.

From TSA to small business lending, emergency regs often make the next emergency worse

My new piece at the Washington Examiner examines how government responses to the last crisis impede response to the next one. The post-9/11 TSA checkpoint system, for example, “is now the one point in air travel where a virus-fearing traveler is least able to avoid prolonged physical or face-to-face contact with a stranger, as well as the… commingling of high-touch personal items on communal trays.” With the COVID-19 crisis, the old rules requiring banks to report “suspicious” transactions are causing all sorts of problems as ordinary customers radically change their banking habits. Worse, “Know Your Customer” regs rationalized on anti-terrorism grounds have become a bottleneck to processing thousands of applications for short-term funds from small businesses not previously known to the bank. Verifying KYC information on a small business, even if it’s got access to all its files, can take a month. Who’s supposed to wait that long amid today’s crisis? (more from colleague Diego Zuluaga on the rules’ failings)

I conclude: of the many good reasons for deregulation, one “is that it bolsters resilience when systems [like banks] are asked to cope with complex new perils.”

A panel on the Constitution, and a second pandemic notebook installment

You can watch yesterday’s Cato online panel on COVID-19 and the Constitution with Ilya Shapiro, Trevor Burrus, and me.

Also at Cato, my latest Pandemics and Power notebook is on NYC Mayor Bill de Blasio’s scheme to draft health care professionals nationwide, feds’ seizures of medical equipment, any excuse to ban vaping, and a scene from the life of a great vaccinologist. And while we’re at it, here’s Deirdre McCloskey with some relevant thoughts: “Coronavirus must not rob us of our liberties forever.”

Election law in a pandemic

Ballotpedia ran a mini-symposium on the strain placed on election law and procedure by the COVID-19 virus. An excerpt from my short contribution:

Whatever your previous thinking on absentee and vote-by-mail procedures, minimizing the need for in-person voting is now the need of the hour. Every vote cast by mail is one that doesn’t add to waiting lines (already a headache even before social distancing) and the need for interaction at sign-in tables.