In times of great crisis, the United States has risen to the challenge of overcoming the threat to life, liberty, and safety while preserving the constitutional rights afforded to its people. The coronavirus pandemic has quickly shifted from a public health crisis to a constitutional crisis that threatens essential liberties.
As lawsuits have finally worked their way through the courts, decisions are now coming down that call into question the near-absolute powers that some governors have seized, preventing state executives from elevating themselves above the legislative and judicial branches.
In March, Democratic Gov. Tim Walz ordered Minnesotans to social distance for two weeks to flatten the curve of infection in the state, invoking state public health emergency laws to require compliance. Public officials proudly called for Minnesotans to do their patriotic duty and sacrifice their livelihoods, faith, and ways of life to fight COVID-19. Endless public safety briefings warned that thousands of Minnesotans would be on ventilators and that intensive care units would be overrun unless people complied.
Without warning, the initial sacrifice of liberties for two weeks to flatten the curve suddenly turned into losing constitutional privileges until COVID-19 is eliminated. Two weeks have now become six months. Without state laws to limit the governor’s unchecked authority, power rests with Walz until he determines otherwise.
In Michigan, Democratic Gov. Gretchen Whitmer echoed the “two weeks to flatten the curve” talking point but found herself boxed in by legislative language that required her to receive legislative approval to extend an emergency beyond 28 days. Republicans in the state’s House and Senate quickly brought legal action against Whitmer, arguing that her actions were illegal. Desperate, Whitmer sought refuge in a 1945 law written to quell violent riots, arguing that “the legislature would not be able to respond as quickly to shifting dynamics, including the potential threat of a second COVID-19 wave.” It remains unclear whether the Supreme Court in Michigan will restore the constitutional rights for its people.
These aren’t the only examples of ambitious executives during these unprecedented times. From coast to coast, people are wrestling for control over their lives as courts, legislators, and governors grapple with the COVID-19 virus and the economic fallout of lockdowns.
Thankfully, all is not bleak for those eager to have their constitutional rights protected. Wisconsin was one of the first states to reopen, and it wasn’t by Democratic Gov. Tony Evers’s choice. The Wisconsin Supreme Court ruled in May that the governor’s stay-at-home orders were an illegal unilateral act and threw them out completely. Evers called the reopening “chaos,” though Wisconsin still has a death toll significantly lower than its locked-down, tightly controlled neighbors in the Midwest.
In Pennsylvania, a federal judge recently ruled that Democratic Gov. Tom Wolf, who ordered businesses to shut down and limited religious and social gatherings, had done so in violation of the Constitution. Specifically, Wolf and state Secretary of Health Rachel Levine violated the First Amendment’s right to freedom of assembly and the 14th Amendment’s due process and equal protection clauses.
U.S. District Judge William Stickman said that although Wolf’s and Levine’s intentions were good, “good intentions toward a laudable end are not alone enough to uphold governmental action against a constitutional challenge.” Stickman added, “The greatest threats to our system of constitutional liberties may arise when the ends are laudable, and the intent is good — especially in a time of emergency.”
Although the Wolf administration will almost certainly appeal this ruling, it is a jarring blow to the narrative being pushed that the only way to fight COVID-19 is to give up essential liberties and bend the knee to state executives.
Thanks to the judicial branch, elected state representatives and senators should feel empowered to recapture their role as lawmakers and ensure that the unchecked power of governors is reined in through strong legislation that puts a time limit on emergency powers. Our system of checks and balances is necessary to protect the freedoms we hold dear and is part of what makes our country the bastion of freedom and liberty for the world.
Chase Martin is the legal affairs director at the Foundation for Government Accountability.