There are serious legal issues with shutdown and stay-at-home orders

By Kevin Roche

I have noted in past posts that the excessive use of executive power in regard to the coronavirus pan(dem)ic is fundamentally undemocratic.  It is also unconstitutional.  At least three provisions are violated by the ongoing use of business shutdown and stay-at-home orders.  The first is the very fundamental right of all citizens to liberty, a right guaranteed by the US and most state constitutions. That liberty cannot be taken from us without due process. Almost all of us are now being subjected to indefinite, broad-based limitations on our activities.  We are told we have to stay at home except for “essential” activities.  Only in the most extraordinary circumstances could such a constraint be imagined, and only for a very limited period of time.  The government bears a very heavy burden to justify such a restraint and to show that there were no possible alternatives. Since we now know that the virus is a very minor risk to the general population, there is no way such a restraint can be justified.

photo by Bob McEvoy

Second, businesses are seeing their property, the business itself, taken without due process and with no compensation.  Businesses have been arbitrarily ordered to shut down or severely curtail how they conduct themselves.  They were given no opportunity to contest the order prior to its issuance.  The orders have completely destroyed many businesses and greatly diminished the value of others. Government takings of property must be done only if this is the least burdensome and only way to accomplish the governmental objective. That is clearly not the case here.  And even if it were an appropriate taking, the owners have to be compensated.  The state governments, including Minnesota’s, have set themselves up for an enormous liability under these taking suits.

Third, the executive branch is exercising powers that it does not have and could not be granted by the legislative branch.  Emergency powers are intended to be used for a limited time only, until the legislative branch can exercise its proper role in passing laws.  The legislative branch is the fundamental representative and democratic branch of government and the only appropriate place for these decisions to be made.  As this drags on for weeks and months, there is simply no reason for there to even be a state of emergency, and there is no need for executive orders, as opposed to legislative action.

Lawsuits will be brought, some, if not all, will succeed, and in the process some very unpleasant and embarrassing information will come to light.