For information on your rights to refuse a COVID vaccine, and whether an employer may require a COVID vaccine, click here.
During the time of COVID-19, governments across the country have sought to restrict the behavior of private citizens and groups in ways that many citizens could not have imagined even a year ago. These regulations have caused many Americans to ask: are these restrictions constitutional? Does the government actually have authority to make these ruled? How much regulation is too much? Can we do anything to prevent these restrictions?
In a prior post, I discussed where you could find the rapidly changing COVID-19 laws. Here, I will discuss how these laws may violate your constitutional rights. Much has been written about this topic elsewhere, by legal writers far more knowledgeable about the subject than I. A blog post of this length cannot possibly cover all of the constitutional issues at stake here. This post will summarize the constitutional issues, and then provide links to various legal articles that cover the subject in much greater detail.
I. Constitutional rights implicated
Supremacy of the Constitution
First and foremost, no federal, state, or local government may pass a law that goes against the Constitution. Article 6, Section 2 of the Constitution says,
“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”
Very early on in the American republic, the Supreme Court held that this section meant that any federal law, that is against the Constitution, is void, and the courts had power to strike down federal laws as unconstitutional. A few years later, the Supreme Court held that any state or local law, that is against the Constitution, is void, and a court could strike down a state or municipal law as unconstitutional. The Constitution is still the supreme law of the land even during emergencies. As the Supreme Court explained during the Great Depression,
“Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the Federal Government and its limitations of the power of the States were determined in the light of emergency and they are not altered by emergency.”
Freedom of religion
During the pandemic, many states and localities have passed laws restricting religious gatherings. In Roman Catholic Diocese of Brooklyn v. Cuomo, the Supreme Court held that some of these restrictions violate freedom of religion.
Freedom of Assembly
The First Amendment says, “Congress shall make no law … abridging … the right of the people peaceably to assemble.” In DeJonge v. Oregon, the Supreme Court held that states and localities could not prohibit freedom of assembly either. The COVID restrictions on public gatherings, may well violate this provision.
Right to bear arms
Many states and cities have closed gun stores and gun ranges. These rules can potentially violate the Second Amendment’s right to bear arms. A Massachusetts federal court overruled the closing of firearms dealers. A Virginia state court barred the closing of a gun range. However, both courts required the firearms dealers and gun ranges to practice social distancing and sanitizing guidelines.
Freedom of movement and travel
As long ago as 1849, the U.S. Supreme Court ruled that Americans had a constitutional right to travel. The recent COVID restrictions may well violate this right. One of the most important Supreme Court decisions protecting the right to travel is Shapiro v. Thompson (1969). Here, the Court held that Americans had a fundamental right to travel, and that a law that denied welfare benefits to persons who had been state residents for less than one year, was unconstitutional. The Court reasoned that a law that placed restrictions on new residents of a state, unconstitutionally infringed on a person’s right to travel.
Many of the recent COVID rules have quarantined persons, or placed restrictions on persons, who have recently entered into a state or locality. Per Shapiro, these laws may be unconstitutional.
Stay-at-home orders, lockdown, quarantine, and restraints on liberty
The Fifth Amendment says that, “no person shall … be deprived of life, liberty, or property, without due process of law” The Fourteenth Amendment states, “nor shall any state deprive any person of life, liberty, or property, without due process of law”
Several courts have held that stay-at-home orders, lockdowns, and quarantine, unconstitutionally restrict liberty. In County of Butler v. Wolf, a federal court held that Pennsylvania’s stay-at-home order violated the Fifth and Fourteenth Amendments.
In County of Riverside v. McLaughlin, the U.S. Supreme Court held that if a person is arrested, the Constitution requires that hearings be held within 48 hours after their arrest. In Hamdi v. Rumsfeld, and Boumediene v. Bush, the Supreme Court held that persons detained as enemy combatants, have a right to habeas corpus.
“Habeas corpus” is a procedure where, a person subject to detention, can ask a judge to command the official holding the person to bring the person before the judge and show why the detention is lawful. Habeas corpus could potentially be helpful for those under quarantine, if the quarantined person asked a judge to order the official imposing the quarantine to show whether the quarantine is legal. For more information on habeas corpus, click here. I also discuss the law of habeas corpus in my blog post here.
You could also sue for false imprisonment. False imprisonment is any unlawful restraint of a person, without justification or consent. You can sue either the government, or a private party, for false imprisonment. Also, a person falsely imprisoned (or their parent or guardian) may file for a writ of habeas corpus. To find out more about the law of false imprisonment, click here.
Procedural Due Process
As noted above, the Fifth and Fourteenth Amendments require that the government provide you with "due process of law" before the government may take your life, liberty, or property.
In Mullane v. Central Hanover Bank and Trust, the U.S. Supreme Court held that "due process" means that before the government deprives you of life, liberty, or property, the government must give you
Notice, and
Opportunity to be heard, and to object to the deprivation.
In Caperton v. Massey the U.S. Supreme Court further stated that your hearing must be before a neutral decisionmaker.
If the government quarantines you without giving you notice and an opportunity to be heard before a neutral decisionmaker, the government may have violated your constitutional right to due process.
Property rights and closure of businesses
In County of Butler v. Wolf, the court held that the Fifth and Fourteenth Amendment protected the right to run a business and pursue an occupation, and that, therefore, the closure of businesses was unconstitutional.
The Fifth Amendment further states that, “nor shall private property be taken for public use, without just compensation.” In Lingle v. Chevron USA, the Supreme Court held that “government regulation of private property may, in some instances, be so onerous that its effect is tantamount to a direct appropriation or ouster — and that such ‘regulatory takings’ may be compensable under the Fifth Amendment.” In Lucas v. South Carolina Coastal Council, the Supreme Court held that if a regulation “denies all economically beneficial or productive use” of property, then the regulation is a taking under the Fifth Amendment. Because many of the COVID lockdowns are particularly onerous, and some lockdowns have deprived business owners of all beneficial or productive use of their property, the regulations may well be takings, under the Fifth Amendment.
Contact tracing and reporting of personal information
Many governments have employed “contact tracing” in which the government gathers information about a person’s movements and contacts. In Carpenter v. U.S., the U.S. Supreme Court held that the government could not search a person’s cell phone records without a warrant. The Court held:
“when an individual ‘seeks to preserve something as private,’ and his expectation of privacy is ‘one that society is prepared to recognize as reasonable,’ official intrusion into that sphere generally qualifies as a search and requires a warrant supported by probable cause”
This could invite the conclusion that a government does not have blanket power to trace a person’s contacts, and obtain a person’s medical information, without a warrant supported by probable cause.
Right to refuse medical treatment
In Cruzan v. Director, Missouri Department of Health, the Supreme Court held that persons had a constitutional right to refuse medical treatment. Some of the forced measures to prevent the spread of COVID, may infringe on this right.
Hospitals withholding children from their parents
There are reports of hospitals refusing to release children (including newborn infants) to their parents, over COVID concerns. The hospital may be criminally prosecuted for kidnapping; a parent could also file a writ of habeas corpus against the hospital, or sue the hospital for false imprisonment. For more information, click on my blog post here.
II. What you can do to challenge a restriction
The answer to this question is not clearly settled. Most of the COVID regulations and lockdowns do not provide for any way to review or challenge an order. You could challenge a restriction in court, and ask the court to overturn the restriction. Another potential way to challenge a restriction would be to threaten to sue a government agency for money damages.
It is difficult to tell whether a court would rule in favor of your challenge. While, across the country, some courts have struck down COVID-related restrictions, other courts have upheld the restrictions as valid exercises of a state’s police power, necessary to protect the public health. However, even if you are unsure whether a court would grant you the relief requested, a lawsuit, or a threatened lawsuit, may force a government agency to take a second look at the restrictions the agency has imposed. Possibly, the agency, threatened with loss of funds, would then back down. As historian Milton Gaither observed, “bureaucracies tend to prefer accommodation to confrontation,” that bureaucrats’ “most effective weapon is bluffing”, and when citizens “refused to be pushed around and threatened legal action, they usually got their way.” Earlier this year (when Oklahoma first imposed its lockdown) a group of citizens sued the City of Vinita, Oklahoma. The City settled out of court, and agreed to drop some of its restrictions, instead of fighting the issue.
You can also refuse to obey a mandate. In many jurisdictions, governments are not enforcing, or are lax in enforcing, the COVID mandates. The Persaud Law Office has examined the court records for Washington County, and we have found that, as of February 16, 2021, no one has been criminally prosecuted in Washington County for violating a COVID restriction. But, if you are arrested and prosecuted, you can argue, at trial, that the law you violated was unconstitutional.
If you are interested in what you can do to challenge a COVID-related restriction, you may contact the Persaud Law Office. On a limited basis, we will provide pro bono (free) representation to people who wish to challenge the constitutionality of a COVID-related restriction. However, you should be aware that:
Because the resources of the Persaud Law Office are limited, we cannot guarantee free representation to everyone.
The Persaud Law Office is licensed to practice only in Oklahoma state court, and not in other states. We are also not licensed to practice in federal court.
III. Bibliography
If you are interested in further, more in-depth information about the constitutionality of COVID restrictions, and quarantine and lockdown generally, I recommend the following resources:
Wendy Parmet. (2018). Quarantining the law of quarantine: Why quarantine law does not reflect contemporary constitutional law. Wake Forest Journal of Law & Policy, 9(1), 1-34 Argues that the contemporary law of quarantine is not in line with constitutional guarantees of liberty, and that quarantines are rarely effective. Makes the dramatic statement that public officials have “quarantined the law of quarantine, separating it from contemporary constitutional constraints on the deprivation of liberty”
Christopher Ogolla. (2011). Non-criminal habeas corpus for quarantine and isolation detainees: Serving the private right or violating public policy. DePaul Journal of Health Care Law, 14(1), 135-168. Quarantines are improperly used, violate many constitutional rights, and courts should grant habeas corpus relief to quarantined individuals.
Richard P. McNelis. (2008). Problematic application of Florida administrative law to police power public health actions. Louisiana Law Review, 68(4), 1145-1168. Quarantines deprives people of constitutional rights, and there should be limitations on the state’s power to quarantine. The author states that “The least controversial thing in all the discussions [that the author had] about mandatory quarantine was the idea that it is another liberty restriction, inviting constitutional issues of freedom of movement, right of free association, possibly impinging freedom of religion, almost surely restricting freedom of assembly, and so forth.”
Gregory P. Campbell, (2011). Global h1n1 pandemic, quarantine law, and the due process conflict. San Diego International Law Journal, 12(2), 497-532. Analyzes federal, state, and international quarantine laws, and the lack of due process protections. Argues that mandatory quarantine and lockdown violate international human rights law.
Wendy Parmet. (2009). Dangerous perspectives: The perils of individualizing public health problems. Journal of Legal Medicine, 30(1), 83-108. Describes the “dangerous patient perspective” where certain individuals such as “Typhoid Mary” are seen as harmful to public health. Argues that this perspective is counter-productive, detrimental to public health law, and leads to violating individual rights.
Wendy K. Mariner.; George J. Annas.; Wendy Parmet. (2009). Pandemic preparedness: return to the rule of law. Drexel Law Review, 1(2), 341-382. Suggests that emergency preparedness laws introduced after 9/11 are ineffective, unconstitutional restrictive of personal liberty. Recommends principles for just and effective emergency preparedness.
Wendy K. Mariner., and Michael Ulrich. (2018). Quarantine and the Federal Role in Epidemics. Southern Methodist University Law Review, 71(2), 391-444. Quarantine violates liberty and is ineffective. Makes the following two statements: "There may be a few instances in which involuntary quarantine of an individual with a quarantinable disease is necessary, but these are remarkably rare cases." (p. 438) “In practice, quarantining a population has never stopped an epidemic.” (p. 444).
Wendy Mariner, George Annas, and Leonard Glantz. (2005). Jacobson v Massachusetts: It’s Not Your Great-Great-Grandfather’s Public Health Law. American Journal of Public Health, 95(4), 581–590. An overview of the tension between civil liberties and public health.
Julia E Aledort, Nicole Lurie, Jeffrey Wasserman and Samuel A Bozzette. (2007). Non-pharmaceutical public health interventions for pandemic influenza: an evaluation of the evidence base. BMC Public Health. Says that masks for the general public are not effective, and recommends against mandatory social distancing. Argues that “efforts to forcibly limit public assembly or movement were seen as legally and ethically problematic, especially when there is limited scientific evidence supporting such restrictions.”
ACLU and Yale Global Health Justice Partnership, Fear, Politics, and Ebola How Quarantines Hurt the Fight Against Ebola and Violate the Constitution. (2015). Documents how quarantine was abused during the Ebola crisis. Recommends that quarantine law be changed to provide more individual freedom.
Photo of COVID-19 closure adapted from Wikimedia Commons. Licensed under Creative Commons 4.0.