On April 23, the Texas Supreme Court wrote that the “Constitution is not suspended when the government declares a state of disaster.” Some commentators seized on the line in arguing against the constitutionality of executive orders or so called “stay-at-home” orders closing certain businesses. But that misapprehends the nature of rights guaranteed by the Constitution. Indeed, a century of American law suggests that executive officials enjoy broad discretion to impose limits on business activity during a public health crisis.
With recent events in Dallas, many lawyers and other citizens wonder: Can the governor, county judge, or mayor really shut down a hair salon temporarily, even in the midst of a public health crisis? The answer under governing legal authority is “yes”—subject to judicial review to ensure constitutional compliance.
Just last month, addressing Governor Abbott’s authority to prohibit non-emergency medical procedures, the Fifth Circuit—hardly a bastion of liberalism—held that “under the pressure of great dangers, constitutional rights may be reasonably restricted as the safety of the general public may demand.” So, how do we reconcile the seemingly incompatible statements by the Texas Supreme Court and the Fifth Circuit? The answer lies in entrenched principles of American law—chief among them the notion that even core constitutional rights aren’t absolute.
We all live every day with national, state, and local limitations on our constitutional rights. Examples abound. I have the right to freedom of speech—but not to exercise it in your residential neighborhood through a bullhorn at 3:00 a.m. We have the right to eat dinner in our favorite restaurant—but not when the government closes it for health code violations. And so on and so forth; the list is seemingly endless. Most of these limitations produce neither angst nor controversy.
The Texas Legislature has vested in executive officials the power to “control the movement of persons and the occupancy of premises” in a disaster area. The statutory definition of “disaster” includes an “epidemic.” Most states have similar statutes—which explains why in virtually every state across the country it is executive officials (rather than legislatures) issuing anti-pandemic orders. These statutes reflect the reality that state legislatures simply cannot act quickly enough to address fast-changing patterns of contagion and other urgent issues presented by a pandemic. Legislation takes time. And epidemics don’t wait.
As a result, American law long has recognized the government’s power to place reasonable, temporary limits on constitutional liberties in times of disaster. The United States Supreme Court upheld such limitations more than a century ago, in Jacobson v. Massachusetts. There, the Court upheld the government’s power to order mandatory vaccination to combat the smallpox epidemic against a citizen’s Fourteenth Amendment challenge. More recently, courts have relied on Jacobson to uphold orders for officials to quarantine returning travelers.
Of course, the government’s possession of this power does not automatically render every exercise of it constitutional. To the contrary, any exercise of this power remains subject to judicial scrutiny to ensure constitutional compliance. And that brings us back to the Texas Supreme Court. When the justices said the Constitution is not suspended in times of disaster, what they meant is that the government’s exercise of power always must survive constitutional scrutiny by the judiciary.
Contrary to what some commentators have suggested, this judicial review does not always implicate “strict scrutiny” (requiring the government to prove no less restrictive measure could meet the threat). Certainly, some restrictions—for example, restrictions affecting religious worship—impinge on fundamental rights.
But many constitutional challenges to closure orders would be subject to the more relaxed rational-basis test. Under this standard, the government need only show that a restriction rationally relates to some legitimate purpose.
This less onerous standard would apply to most (though certainly not all) challenges by businesses to closure orders. The United States Supreme Court has long held that the Constitution generally does not recognize a right of assembly or association related to business patronage. And it would be hard to argue that the closure orders do not rationally relate to protecting the public against the spread of a deadly disease.
Limiting the spread of a deadly disease that already has killed nearly 100,000 Americans is a legitimate government purpose. No one could reasonably argue that closing businesses does not rationally relate to that purpose—the less contact among people, the slower the rate of infection.
Some commentators and litigants have argued that the orders go further than is necessary or rest on unsupportable distinctions among businesses. Why is this business allowed to remain open, when that one is closed? Some of these criticisms undoubtedly have merit; certain distinctions are puzzling. But the whole point of the rational-basis test is to prevent this type of judicial second-guessing of the exercise of discretion by legislative and executive officials.
Some aspects of the orders may trigger strict scrutiny, either because they trench on fundamental rights or rest on suspect classifications. But even then, the result is not preordained in favor of these challenges; the government may—in some instances—be able to establish that lesser restrictions cannot protect the public. In those situations, though, the government bears the burden to justify the restrictions as the least restrictive means of achieving its goals.
Of course, to say that all this is permissible has nothing to do with whether it is advisable. Just because the government can take an action doesn’t mean it should take the action. Perhaps businesses need to reopen. Or perhaps they never should have been forced to close at all. But those questions are a matter of policy making by the political branches (subject, ultimately, to electoral review by citizens)—not constitutional scrutiny by the judiciary.
Three final points bear mentioning. First, these are important conversations. All of us as citizens—and particularly those of us who are lawyers—must remain vigilant to ensure that the government does not cross the line from permissible restrictions to wholesale trampling of constitutional rights. Second, distinguishing the latter from the former isn’t always easy. There is room for reasonable and intelligent people—and judges—to disagree. And, finally, these types of constitutional lines should be drawn without the infecting influence of partisan politics. The principles at issue are too important.
Chad Baruch is a partner at Johnston Tobey Baruch.