All 50 states have reopened, at least partially, and nearly all stay-at-home orders still in effect are set to end before June. Americans are venturing outside and states are restarting their economies, despite fears that opening before the pandemic is over could lead to a jump in COVID-19 cases.
Even as lockdowns end across the country, however, many states face legal challenges to their restrictions. The Wisconsin Supreme Court overturned the governor’s statewide stay-at-home order on May 13, and by that evening, people packed local bars. Over a dozen counties issued their own lockdown orders, creating a patchwork of legislation.
But within days, most counties rescinded their orders, fearing legal challenges under the precedent set by the state supreme court. One public health official said in a May 15 statement that her county’s legal counsel “is now of the opinion that the legal basis for the Order is likely not strong enough to withstand legal challenge.”
According to The Hill, as of May 16, there were over a dozen lawsuits challenging the constitutionality of stay- at- home orders, on their constitutionality, and over 40 opposing forced business closures and essential business designations. Could what happened in Wisconsin occur in other states?
After last week’s court battle in Wisconsin, all future statewide pandemic-related restrictions will need approval from the Republican-dominated legislature’s rule-making committee before they can be carried out. However, in Wisconsin, agencies don’t have implied authority; a 2011 law narrowed state agencies’ authority to only what state law expressly grants. In states where agencies retain broader powers, similar rulings might be less likely.
Governors in California, Illinois, Maryland, Michigan, Ohio, Pennsylvania and Washington face high-profile legal challenges to their stay- at- home orders. Oregon’s supreme court issued a stay on a lower court’s ruling against the state’s stay at home order and could issue its own ruling as early as next week.
Opponents of stay- at- home orders contend that the orders are examples of government overreach and claim the orders violate their civil rights. Legal scholars, however, argue that individual rights are not absolute, and governments can infringe upon them in emergencies for the good of the wider public. In court, state orders may need to pass a strict scrutiny test, in which laws are narrowly tailored and serve a compelling government interest.
As one New Hampshire court wrote in a March 25 ruling, “Courts have long held that public health, safety and welfare constitute a significant government interest,” adding that the state’s governor “has the authority to suspend or limit fundamental rights during a state of emergency.”
In Illinois, Gov. J.B. Pritzker’s stay- at- home order faces a crucial test at a hearing scheduled for May 22. Although the order has passed multiple religious challenges in federal courts, Clay County Judge Michael McHaney opposes the order, saying “every hour that goes by, [Illinois residents are] being deprived of the right to leave their house or make a living.”
Illinois’ stay- at- home order is set to end May 30, but officials have flip-flopped as state authorities and lawmakers fight among themselves. Pritzker announced an emergency order on May 15 that would have allowed businesses to face criminal misdemeanor charges if they didn’t comply with orders to stay closedshuttered. He also said that the state would enforce the rule by revoking business licenses and selectively allocating state funding. Five days later, Pritzker withdrew the rule under pressure from legislators.
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