Now into the third month of the coronavirus crisis, Americans are getting restless. Having for the most part accepted in March that fighting a pandemic with incomplete data required taking drastic steps, they now want the benefit of the lose-lose bargain that COVID-19 forced on them. We flattened the curve, the thinking goes, preventing our medical system from being overwhelmed—heck, health care workers are being laid off!—so now it’s time to resume our lives and recoup as much as we can.
The constitutional analysis of the various shutdown orders tracks that popular sentiment: States have the “police power” to govern for the general health, welfare and safety of society, so long as they have sufficient justification for doing so. But that doesn’t mean that there’s no limit on the actions that state and local officials can take, or that actions that were justified at one point will continue to be justified forever, regardless of underlying developments.
In other words, it’s prudent in a pandemic to restrict activities that would otherwise bring people together in a way that facilitates viral transmission, but it doesn’t mean governors get to “shut down” anything and everything on a whim. Recall that viral video of the guy running along the beach in California, chased by a hapless cop. Or that dad who got arrested for playing catch with his kids in a public park. Or mayoral edicts that stop drive-in church but permit drive-thru liquor sales. Or the Michigan order banning motorboats but not sailboats; the sale of seeds but not weed.
State officials also have to follow their own constitutions. ……..