Are ‘Stay At Home’ Orders Constitutional?

As of today, over half the people in this country, across 17 states, are subject to “stay at home” orders. They vary considerably in terms of breadth and level of enforcement but, as a whole, they represent a breathtaking set of limitations on how Americans live their lives. Various state and local governments will likely order more, and perhaps even stricter, restrictions. But are such orders constitutional? The Constitution protects the right to associate, assemble, worship and travel. Does that mean there are limits on what sort of restrictions the government can place on people’s freedom of movement?

The answer is complicated and it is different for state and local governments than it is for the federal government. This piece will only address the state and local laws because there is no federal stay at home order yet. That could change, but for now, restrictions on leaving home, congregating in groups, and so forth, are happening on the state and local level.

There are plenty of laws on the books that allow for these orders. But even emergency and health-protective laws have to be constitutional. The constitution protects our liberty in good times and bad and it explicitly provides for only very limited emergency power. It only allows the suspension of the ordinary judicial process in the event of war, invasion, or rebellion. Furthermore, this authority is granted to Congress and not to the president (even if he calls himself a “wartime president”) or to state and local governments. So even during this crisis, the states must obey the ordinary constitutional restrictions on their powers.

The Supreme Court has had little to say about state power to override people’s liberty during epidemics. The most helpful case is from back in 1905 during the smallpox epidemic, Jacobson v. Massachusetts. In that case, a pastor argued that a mandatory smallpox vaccination violated his constitutional rights. The Supreme Court sided with Massachusetts but framed its decision carefully. 

The Court acknowledged that “the liberty secured by the Fourteenth Amendment . . . consists, in part, in the right of a person ‘to live and work where he will.’" But it added: “in every well-ordered society . . . the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”

Even in our current situation though, the power of the government is limited. The Court warned that some restrictions may be so “arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression.” The Court added: “if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution."

How would the courts decide what restrictions cross that line? They would most likely apply the “strict scrutiny” test, which requires that a law be “narrowly tailored to further a compelling government interest.” The government can override even such basic rights as freedom of speech, assembly, and religion if it meets the demands of strict scrutiny.

Preventing the spread of a pandemic is obviously a compelling government interest. Therefore challenges to any restrictions would turn on whether they are narrowly tailored to do that. One reason they may not be narrowly tailored is if they are egregiously excessive. But the courts will likely grant the government a lot of latitude on that question. In the Jacobson case, the pastor who didn’t want the vaccination argued that there was a difference of opinion about the effectiveness and risks of vaccinations. The Supreme Court responded: “The fact that the belief is not universal is not controlling, for there is scarcely any belief that is accepted by everyone. The possibility that the belief may be wrong, and that science may yet show it to be wrong, is not conclusive, for the legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases.”

So what would cross the line? Certainly anything racially discriminatory. President Trump likes to call COVID-19 the “China Virus.” If any part of the government tried to impose special rules on Asian Americans those rules would be unconstitutional. In 1900, the city of San Francisco “required persons of Chinese ancestry to undergo inoculation against the bubonic plague by a [potentially dangerous] serum known as ‘Haffkine Prophylactic’ and prohibited uninoculated Chinese residents from traveling outside the city.” A federal court stopped the city from enforcing the order, holding the city failed to produce evidence that the Chinese were more likely to carry or spread the plague than anyone else.

Restrictions that smack of political favoritism might fail strict scrutiny as well. So would hastily drafted laws that, perhaps unintentionally, made distinctions between what sorts of activities are allowed that could not be justified on public health grounds. Also, laws that put people’s lives or health in danger by over-restricting access to food, medicine, and medical treatment, or perhaps even exercise for some people would probably be unconstitutional. So might restrictions that, for reasons of political inertia, remained in place after they could no longer be reasonably justified.

Finally, it is worth noting that there are two ways to challenge the constitutionality of a law. Someone could challenge a law “on its face,” meaning they want the court to strike down the law in its entirety. Another way is to challenge a law “as applied” to a particular person. For example, a cardiac patient might challenge a restriction that is preventing him or her from going outside for needed exercise. 

For now, it seems more likely that a court would uphold an “as applied” challenge where a restriction was enforced so rigidly that it created a harmful outcome in a particular case. While the government must act forcefully to protect public health, it would be best if restrictions were enforced flexibly. For example, while the mayor of Los Angeles has said of his “safer at home” order: “This is not a request—this is an order,” his officials have also said that they would take a “light touch” to enforcement.

In conclusion, strong government action, with due respect for the government’s constitutional limitations and some flexibility in enforcement, would seem to be the best approach.