Apr 27, 2020 8 min read

While protesters across the country defy stay-at-home orders to defend their freedoms at anti-quarantine rallies, constitutional law professors say the cases they are trying to bring against governors probably wouldn’t hold up in court.

Protesters in the state capitals of Pennsylvania and Maine congregated last week, demanding that governors end the stay-at-home orders aimed at lessening the spread of COVID-19. The protests followed the lead of similar rallies in California, Colorado, Kentucky, Maryland, Michigan, Minnesota, North Carolina and Virginia.

Groups organizing the rallies have called for the governors’ restrictions to end on May 1, but many governors are extending the stay-at-home orders because they say the measures are working to flatten the curve and lessen the spread of the coronavirus.

Those organizing and attending the rallies say they are within their rights to peacefully assemble, and they believe the governors are abusing their power and causing economic devastation by requiring businesses to remain closed.

The Harrisburg protest was organized in part by Pennsylvanians Against Excessive Quarantine, a Facebook group that was started on April 14 and, as of Thursday afternoon, had more than 72,000 members. Other groups organizing the rally were ReOpenPA and End the Lockdown PA.

The PAEQ Facebook page features a link that redirects visitors to the Pennsylvania Firearms Association website. On that site is a call to end Gov. Tom Wolf’s shutdown by passing a resolution drafted by Republican Sen. Doug Mastriano, who rallied the crowd at the April 20 protest. He represents the 33rd District in south central Pennsylvania.

In a phone interview on Thursday, Mastriano said “the mood was really good” at the rally, adding that he estimated about 3,000 people were there.

“People were exercising their rights,” Mastriano said. “You know, just because the governor issues an emergency order, it doesn’t suspend people’s personal rights. They’re supposed to be God-given rights, as delineated in the Constitution. And so, it was refreshing to see that.”

On the same day as the rally, Pennsylvania Gov. Tom Wolf extended the state’s stay-at-home order until May 8, and throughout the state, all shoppers are required to wear masks when they enter a store.

“It’s a dangerous thing here when human rights feel like they’re being trampled on with so many restrictions on us,” Mastriano continued. “My solution is Senate Bill 1103,” he said. “I believe the governor’s orders were too haphazard and too Draconian.”

Mastriano’s claim is that the term “nonessential” was used loosely and frivolously, as some businesses were allowed to remain open while others were shuttered.

“Six thousand car dealerships in the state, and 20 get the golden ticket to stay open,” he said. “Why can’t they all reopen with the same guidance that the secretary and the governor gave to the 20 that were allowed to be open?”

He said “picking winners and losers” is not fair, and that everyone should be able to work as long as they follow safety precautions and guidelines to keep workers and the public safe.

“The problem is it’s a one-size-fits-all approach by the governor to shut us down in the name of public safety,” Mastriano said.

Using guidelines from the Centers for Disease Control and Occupational Safety and Health Administration, Mastriano wrote SB 1103 to establish strict protocol that must be followed if businesses are allowed to reopen. It also includes what he calls “The Employee Bill of Rights,” which states that if a worker is ill and cannot work, he or she will not be punished for staying home.

“They need to put the power back in the hands of Pennsylvanians to decide, not the governor to decide,” he said.

Republican state Rep. Aaron Bernstine spoke at the rally as well. He represents Beaver, Butler and Lawrence counties, and he believes that the main issue is reopening businesses safely.

“For the last month, the conversation has been around essential and nonessential businesses, when the conversation really needs to be around people that can work in a safe way,” he said.

He pointed to a bricklayer who works alone.

“That man can, without a doubt, work in a safe manner,” Bernstine noted. “It’s just himself. So there’s no reason we shouldn’t be able to allow things like that. Not only in Pennsylvania, but in Michigan, and numerous other states throughout the country, governors have stepped in and taken a hatchet approach rather than a scalpel approach as to what can be done to make sure that people’s livelihoods aren’t destroyed while still protecting their lives.

“Not only are governors overreaching their constitutional bounds,” he said, “but their actions are actually ineffective.”

Is this constitutional?

Governors have declared state emergencies, and they are acting within their rights, according to the U.S. Constitution, law professors said last week. Their decisions to require business closures, to not allow for congregating or travel within the state, and even to limit things like using motorized boats, are at their discretion during the 28-day emergency period, a Western Michigan University Cooley Law School professor said.

Michael McDaniel is campus dean and a tenured professor in constitutional law at WMU’s Cooley Law School Lansing campus. When asked if anything in the orders infringe on constitutional rights, he said no.

“It’s very, very difficult to make a case here,” he said.

He said the Bill of Rights applies to the states under the 13th Amendment, but the 14th Amendment drafted after the Civil War in 1868 further clarifies the rights of citizens pertaining to state government.

Section 1 of the 14th Amendment states, in part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

A law, often called the First Civil Rights Act, was passed in 1875 during the Grant administration, McDaniel said.

“It specifically gave individuals a right to sue states for violation of their constitutional rights,” McDaniel explained.

That’s what some people are doing. But McDaniel doesn’t expect them to win their lawsuits because the law gives governors broad power whenever a state of emergency is declared.

“People do see this avenue where they can sue the state,” McDaniel said. “That being said, you still have to have, for want of a better term, a cause of action, a violation of your First Amendment rights. … The First Amendment has a lot of good stuff in there. If you look at it, everybody knows about the right of speech, but there are … six different rights contained in the First Amendment, and it’s all the really good stuff … It’s the freedom of speech, it’s the freedom of the press, it’s the right to petition the government for redress of grievances, it’s the right to peacefully assemble, and it’s also the two religion clauses, that the government cannot establish a religion, and that they can’t interfere with the free exercise of religion.”

He continued, “But none of those is absolute … there are times when those can be limited in some way. Even though you have the right to peacefully assemble, and people were permitted to peacefully assemble last Wednesday at the Lansing Capitol grounds, we can still have some condition so it’s not interfering with other people’s right to be in that same area.”

McDaniel said the government cannot prohibit those rights, “but you can put some limitations on those so that the rights of others are not interfered with. And that is one aspect of what was being done.”

When the U.S. Constitution was ratified, the framers specifically left the power of health, safety and welfare with the states, McDaniel said.

“Nowhere in there does it give that power to the federal government,” he said. “So, the president can’t say, ‘I’m telling you, you all have to reopen.’ I think he must have had a realization at some point, from saying he had absolute power, to saying it’s up to the states to do so. He realized that he doesn’t have that power.”

And that broad power falls on the governors as long as they can show that their orders “serve a compelling governmental interest.”

Richard E. Levy, Distinguished Professor of Constitutional Law at University of Kansas School of Law, pointed to the interest of public health during a pandemic.

He said that while a ban on public gatherings seems to violate the right to peaceably assemble, a court may require the state to provide information proving that it is “necessary to serve a compelling government interest.”

“Certainly preventing the spread of a debilitating and deadly disease is a compelling governmental interest, and there is ample evidence that this danger is real,” Levy said. “A key question would be whether there are alternatives that would be less restrictive or burdensome on the right of assembly.”

He added that adding the requirement of masks and distancing may be a sufficient measure without creating a burden on the right to assemble, but that certain arguments would not hold up in court.

“A further general point would be that courts would likely not be persuaded by arguments that the virus is a hoax,” he said, “that it is not really dangerous, or that it is better to let people get sick and die than it is to limit public gatherings.”