As the national lockdown continues, several disgruntled Guthrie residents have decided to take the city’s stay-at-home orders to federal court (https://www.documentcloud.org/documents/6876525-Guthrie-Petition.html#document/p3).
Unfortunately, the question of when to reopen the state has become a political one. In broad strokes, those on the left accuse conservatives of denialism about the problem and criticize conservative leaders who are eager to reopen as eager servants of corporate profits. On the right, there are concerns about government heavy-handedness in implementing the shutdown, as well as the very real issue that millions of Americans who have lost their jobs do not have the means to subsist for an indefinite period of time without assistance. Reopening the economy might be good for Wall Street, but it will eventually become a necessity for Main Street as well.
The current guidance from the White House is that states should be under stay-at-home orders until they see marked improvement, which is defined as 14 consecutive days of declining cases. Other than spreading this dangerous virus, federal authorities are worried about hospital overwhelm as tests, masks and ventilators run short.
Even if Guthrie citizens’ challenge is ill-advised, does it have a legal foundation? I’ll talk about Oklahoma’s quarantine orders rather than Guthrie’s in particular.
The Constitution guarantees us liberty and freedom from government encroachment, but the Tenth Amendment suggests that the individual states have powers not mentioned in the actual text of the Constitution. Many courts and scholars agree that one unenumerated power is the ability of a state to take reasonable actions to protect the general welfare in times of crisis. An indefinite and total ban on movement would be unreasonable, but Oklahoma’s targeted and time-bound instruction against certain behaviors is likely a reasonable precaution against exacerbating the pandemic.
That said, there are certainly interesting ways that a constitutional argument could be made against these orders. For one, the First Amendment guarantees the right to freedom of assembly and to practice religion, both of which are disrupted by Safer-at-Home orders.
Another argument is that the orders unconstitutionally restrict our freedom of movement. States are generally not permitted to restrict movement to or from other states. Governor Stitt’s executive order last month requiring a two-week self-quarantine for travelers from six states might be viewed as an unconstitutional burden on movement or interstate commerce.
A final interesting argument might be made by those awaiting trials or other court proceedings. The Sixth Amendment guarantees the right to a speedy trial, and Congress codified this edict in the 1974 Speedy Trial Act with a 30-day timeframe. Courts around the country have postponed trials and are doing their best to keep up with videoconferencing technology, but the backlogged dockets many judges already face will no doubt be compounded by this crisis. Though the circumstances are quite understandable, a litigious prisoner could argue that their Sixth Amendment rights have been violated.
Novel constitutional arguments notwithstanding, a case brought by the citizens of Guthrie is unlikely to succeed in overturning our frustrating but well-founded quarantine.
Calvin H. Warner is a law student at Vanderbilt and an adjunct professor at Belmont University. He is a 2010 graduate of Oklahoma Christian School in Edmond.