Our everyday lives are still adjusting to the new normal. A new normal consisting of state of emergencies, stay-at-home executive orders, social-distancing requirements, and lists of activities and businesses considered “essential” or “nonessential.” And trying to figure out what is happening at any given moment requires navigating a complex maze of continuously changing orders, recommendations, and protocols.
Have your basic civil rights disappeared in this complex maze? Indeed, many rights have bent to some degree, but they are not gone. Below, we explain the basic concepts at play. But, because we’re in some unchartered territory, expect some of these issues to end up in court.
What Does a State of Emergency Mean and Do?
When a governor or mayor issues a state of emergency, the declaration gives government leaders access to emergency resources and authorizes their use of “emergency powers.”
Emergency Powers
Emergency powers allow governments the flexibility to “sidestep” certain laws and rules in order to act quickly to protect public health and safety. For instance, under the threat of hurricane warnings, governors might use their emergency powers to direct residents to evacuate from coastal areas. Upon residents' return to the area, the governor could issue a curfew to maintain law and order during power outages. Normally, these types of directives would need to be debated and go through a longer administrative, judicial, or legislative process. But, in a state of emergency, time is of the essence.
Public Health Emergency Powers
Government action typically follows emergency protocols already in place, and many states have emergency rules in law (put there by legislatures) to guide officials’ responses.
For a public health emergency involving an infectious disease, government officials use their emergency powers to stop the spread of disease, treat those infected, and protect public health and safety. Right now, government officials aim to prevent the spread of the coronavirus in the community and take the pressure off the healthcare system.
In an effort to contain COVID-19 and slow its spread, we’ve seen mayors and governors use their emergency powers to issue stay-at-home orders, close schools and businesses, restrict travel, and push back election dates. Courts and public health officials also have emergency powers. Courts around the country have closed courthouses, suspended jury trials, set emergency bail schedules, and implemented virtual court hearings. Public health officials can institute quarantine measures and conduct testing.
Are There Limits to Emergency Powers?
During a state of emergency, the government can limit certain rights and liberties of citizens—such as the freedom to travel—for the greater public good. But the government’s actions must be reasonable and nondiscriminatory and not go beyond what is necessary.
Say a governor ordered all religious buildings to close to prevent the spread of the virus in large groups but didn’t close other venues where large groups congregate. This action would be discriminatory by targeting religions. The enforcement of orders must also be fair. It would be discriminatory for police to only (or largely) issue stay-at-home violations to persons of color.
So, yes, limits exist. But we’ve never seen the limits pushed this far. Many governors and mayors have issued states of emergency in the past but nothing to this extent. Past orders have responded to natural disasters (hurricanes, fires, floods) and riots (Ferguson, Mo.; L.A. riots), among other emergencies. These past orders were limited in geographic scope and duration. The COVID-19 public health emergency is unlike other emergencies the United States has experienced—spanning the nation for months.
Can Emergency Powers Be Challenged?
Constitutional rights and civil liberties are incredibly important, but they’ve never been absolute. For instance, your freedom of speech doesn’t allow you to lie under oath (perjury), threaten someone with violence, or possess child pornography. During a time of crisis, the government can also limit constitutional rights. But your rights are not gone, and checks and balances remain.
If the government abuses its power, takes actions that are discriminatory, or doesn’t have a reasonable basis for imposing restrictions, you can seek justice in the courtroom or at the polls. In a court action, the judge would likely balance your individual rights against the rights of many and evaluate the government’s actions and reasons for those actions.
Right now, we’re wading into unknown territory, and it might be a while before lawsuits sort out just how far emergency powers go. Already, Michigan citizens have filed lawsuits alleging the governor’s stay-at-home order violated constitutional rights, such as their First Amendment right to associate with others. Protests to reopen the economy have occurred across the country as citizens object to state governments’ right to close certain businesses but not others. In Pennsylvania, a group of businesses seeks a decision from the U.S. Supreme Court to "strike down" the state governor's executive order that keeps certain businesses closed. They claim the governor's order deprives them of constitutional rights—their rights to due process (to be heard and not subject to unfair government actions), to not have property taken without just compensation, and to free speech and assembly.
Talk to a Lawyer
If you believe your rights have been violated, contact a lawyer. A lawyer can help you evaluate your case and explain your options. For additional information on legal rights during the pandemic, check out our coronavirus resource center.
