Court Battles

Governors headed for messy fight over coronavirus restrictions

Governors are heading for a clash with their own citizens and local officials as they weigh how and when to reopen the country’s economy amid the coronavirus pandemic.

President Trump’s own guidelines for easing social distancing restrictions, unveiled on Thursday, leave the final decisions for those matters with state governors. And those governors are facing growing pressure from the public in states such as Ohio and Michigan, where protests have called on leaders to quickly lift stay-at-home orders and bans on large gatherings and to allow  nonessential businesses to open their doors.

Experts say those fights between local stakeholders eager to lift the economic shutdown and governors, wary of losing ground against the virus, will be the next battleground in the nation’s pandemic response.

“We’ve already seen significant conflicts between state and local leaders over the imposition of social distancing restrictions, exceptions to them, and how they should be enforced,” said Lindsay Wiley, a law professor at American University. “We’ll surely see conflicts over decisions to ease them.”

And it’s a fight in which Trump appears to be siding with those who want the restrictions to be lifted quickly.

Trump and state governors appeared to reach a truce this week when the White House unveiled guidelines for phasing in a reopening of the economy that seemed to give wide latitude to states. 

The federal recommendations came after Trump and several state leaders recently exchanged sharp words over whether public health authority ultimately resides with federal or state governments.

“You’re going to call your own shots,” Trump told the governors during a conference call, according to The Associated Press. “We’re going to be standing alongside of you.”

But in a series of tweets on Friday, Trump appeared to back protesters in Minnesota, Michigan and Virginia, where extended stay-at-home orders and other restrictions have sparked a backlash.

“LIBERATE MINNESOTA,” Trump tweeted, followed by a tweet that read, “LIBERATE MICHIGAN.”

“LIBERATE VIRGINIA, and save your great 2nd Amendment. It is under siege!” read a third tweet, a reference to new gun laws in the state.

Trump’s tweets in support of the protesters seemed designed to put pressure on the Democratic leaders of three 2020 swing states.

Washington state Gov. Jay Inslee (D) fired back at Trump, accusing him of “fomenting domestic rebellion.”

More protests are expected in the coming days in Wisconsin, Pennsylvania and Idaho, giving a public voice to the opposition to social distancing restrictions across the country.

In Michigan, a crowd of demonstrators organized by a conservative group on Wednesday descended on the state Capitol to protest Gov. Gretchen Whitmer’s (D) stay-at-home order.

“When did one size solve everyone’s local issues?” one unidentified organizer asked local news radio station WWJ. “Gov. Whitmer will put you out of business before allowing mere citizens to be responsible for their own behavior. That is madness.”

Whitmer faces two lawsuits over her stay-at-home order, with the plaintiffs — Michigan residents and businesses — claiming the April 9 order infringes on the constitutionally protected freedom of association and due process rights. 

Michigan has recorded more than 29,000 cases and 2,000 deaths from the coronavirus. Nationwide, the U.S. has more than 683,000 cases and 34,000 deaths.

In New Jersey, Gov. Phil Murphy (D) has been under criticism for his decision to include churches and other houses of worship in his state’s strict social distancing guidelines.

During a tense interview with Tucker Carlson of Fox News, Murphy was asked about constitutional protections after police broke up a rabbi’s funeral in early April at a synagogue in Ocean County, N.J., arresting 15 men.

“That’s above my pay grade, Tucker,” Murphy replied. “I wasn’t thinking of the Bill of Rights when we did this. … We looked at all the data and the science and it says people have to stay away from each other. That is the best thing we can do to break the back of the curve of this virus, that leads to lower hospitalization and ultimately fatalities.”

The landmark 1905 Supreme Court decision in Jacobson v. Massachusetts held that constitutional rights can be lawfully restricted when emergency public health measures are in place, though the precise scope of government public health power is not clearly defined.

But there has not been a direct legal ruling yet on mandatory stay-at-home orders, and state and local leaders could find themselves dragged into court fights if they adopt an overly aggressive approach to enforcing mitigation measures, Wiley said.

Governors and local officials may need to walk a tight line in enforcing restrictions.

“Harsh enforcement would probably trigger lawsuits that could be more difficult for state and local leaders to defend than the suits filed so far by churches, gun shops and health care providers,” she said.

In addition to citizen protests, another source of conflict could result from states moving on a faster timeline to reopen than cities, where higher population density makes person-to-person transmission of the virus easier.

“Conflicts between state and local control are a common problem for public health measures,” Wiley said. “We’ve seen it with gun control and fast food regulation, and now we’re seeing it with social distancing.” 

Within states, the division of public health power is based on each state’s constitution and statutes, creating a complicated patchwork of authorities across the country.

In a majority of states, the governor, legislature or both have the power to override local governments. In other cases, state constitutions provide so-called home rule authority, giving a degree of autonomy to local leaders.

How these looming health conflicts are resolved will vary state by state, and early signs are of a split among blue and red states, with Republican governors more eager to ease restrictions.

Wiley said governors will face a challenge as they navigate the pressure and decide how to enforce restrictions.

“Pandemic plans urge leaders to avoid police crackdowns and to rely on enforcement against businesses and organizations — not individuals,” she said.

“Maintaining the public’s trust and cooperation will be critical over the months to years for which some degree of social distancing is likely to be needed.”

Tags Coronavirus Donald Trump Jay Inslee reopening economy Tucker Carlson
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