Mar 26, 2020

Is California statewide stay at home order legally "adequate" ?

This is an opinion published in the LA Times.

"There is little doubt about the overall wisdom of Governor Gavin Newsom’s response to the coronavirus pandemic: On March 19, he ordered Californians to stay home for everyone’s good."

"But the order’s legal adequacy is another matter. In fact, legally speaking, it’s something of a mess. As it drags on, it will chafe and even cripple many Californians. Some of them will react for their own good: They’ll sue."

"And they may prevail."

For starters, the order, like others around the country, is the most expansive, even breathtaking, assertion of government power in at least 50 years in the U.S. It directly impinges on a series of fundamental constitutional rights, including the rights of association, travel and assembly.

Indeed, we colloquially call the order a “quarantine,” but in legal terms, quarantine refers to the isolation of people who have already been infected with a communicable disease. Newsom’s edict is far broader.

It’s not that the government can never infringe on constitutional rights. It can. But it has to be able to to show that it has a “compelling interest” for doing so, and that its action is the “least restrictive” means for achieving it.

This is the doctrine of strict scrutiny, which law professors like to call “strict in theory, fatal in fact” because it is so difficult for the government to satisfy.

California surely has a compelling interest for acting to protect the health and safety of its citizens. The challenge for the state will be convincing the courts on the “least restrictive” question.

Meanwhile, police departments throughout the state have moved to reassure citizens that they actually don’t intend to enforce the order, which provides for misdemeanor violations or fines for those who don’t obey. Sound public policy perhaps, but there’s something wrong with a law that the police say they won’t enforce from the start.

Read the entire opinion:

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