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In the past few months, the COVID-19 pandemic has gripped and transformed our nation and has already brought unprecedented uncertainty and consequences to our families, businesses and communities. A myriad of legal issues have already arisen, and will continue to develop as federal, state and local government agencies continue to undertake actions to protect the health and safety of the American public.
In mid-March, the declaration of a national state of emergency by President Trump under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as well similar declarations in many states, signaled that our government might seek to seize private property and restrict personal liberties in order to assist the public effort to control the pandemic and protect our health and welfare. Under the Stafford Act, the Federal Emergency Management Agency (FEMA) is authorized to use eminent domain to take both real and personal property on an emergency basis. This federal law gives FEMA extensive powers which can affect our citizens but should not render nullities the protections we are all afforded under our federal and state constitutions, such as the guarantee of just compensation for any taking that is undertaken for a public purpose.
As the United States Supreme Court has made clear: “[t]he Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. U.S., 364 U.S. 40, 49 (1960). Furthermore, the Supreme Court has specifically recognized that the existence of an emergency cannot change the protections afforded under the Constitution, a document which was itself created during a period of “grave” emergency:
Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the Federal Government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency. What power was thus granted and what limitations were thus imposed are questions which have always been, and always will be, the subject of close examination under our constitutional system. While emergency does not create power, emergency may furnish the occasion for the exercise of power.
Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398, 425-426 (1934).
Examples of early local government efforts in reaction to the COVID-19 pandemic were evident in Washington State, where a county agency purchased a motel property to assist in quarantine efforts, and in cities such as New York City, Chicago, and Los Angeles, where hotels were or are being leased to temporarily house patients, health care providers and other essential service workers. While some of these efforts have involved voluntary arrangements, many resulted after governors around the country signed executive orders authorizing state and local agencies to “commandeer” (a) real property such as hotels, medical facilities and other properties; and also (b) personal property such as personal protective equipment (PPE) desperately needed by health care professionals on the front lines treating COVID-19 patients.
Our battle with COVID-19 is fluid, presenting issues that evolve and change with each day that passes. As we navigate our way through these unprecedented times and the increasing use by government agencies around our country of their “emergency” powers, a reminder on how to dissect current or future efforts from a legal perspective can provide guidance for the current times and the future events that are likely to occur.
To start, any true emergency may empower government to undertake action(s) that would not be authorized in non-emergent situations. For instance, if your house is on fire, local fire, police, and emergency workers would be authorized to forcibly enter the property to save lives and property, while they can’t do that ordinarily, at least unless they have a warrant or some other valid reason. For a cogent summary of how emergent situations can cause government to take actions that may impair personal property rights and liberties, we commend to your reading our colleague Robert Thomas’s blog post, “Emergencies, Police Power, Commandeering, and Compensation: Essential Readings”.
The emergency declarations and executive orders that have been entered during the COVID-19 pandemic by the president, by many governors, and at other local and regional executive levels of government generally provide that government agencies may “commandeer” private property if needed and deprive citizens of other liberties and rights, the like of which has not happened in our country’s history, except perhaps in times of war. Shortly after the orders authorizing these emergency seizures, most states issued “shut down” orders, which required citizens to stay at home, to engage in “social distancing,” and to shut down their businesses until further notice unless they provided “essential services.” The orders lasted for many weeks and resulted in many court challenges around the country. The challenges are widespread, filed by individual private businesses, groups of businesses, religious institutions, and politicians. In Wisconsin, a Republican-led legislature sued its Democratic governor, alleging that the governor exceeded his powers by issuing executive orders that were too long in duration. They won, convincing the Wisconsin State Supreme Court in a 4–3 vote to invalidate the orders. But, after the high court decision, many local agencies in Wisconsin issued their own orders to return many of the restrictions. In Oregon, a state trial court judge vacated the governor’s shutdown orders but was reversed later the same day by an appellate court. More recently, lawsuits have been filed challenging anti-eviction orders and legislation, and the college town Ithaca, New York, has adopted ordinances suggesting that tenants there are relieved of their obligations to pay rent.
Faced with the prospect of more similar actions in the future, more possible restrictions to be imposed or lifted in different ways in different states, and a possible prolonged state of emergency in our country until the health crisis is contained, how can our citizens measure whether these governmental actions and mandates are, in fact, properly premised upon the law in our nation of laws? Whether existing or future emergency actions that affect our rights are authorized requires examination of the relevant provisions of the U.S. Constitution and state constitution in question. All government power in our country emanates from the U.S. Constitution, which during a time of “grave emergency” in our history purposefully established: (a) a system of checks and balances with three branches of government; (b) the principle of federalism, which creates and recognizes two sovereign powers—the federal and state governments; and (c) a Bill of Rights, which further specifies the limitations of the government’s powers with respect to individual citizens. The U.S. Constitution imposes limits on governmental power by dividing government against itself—both by giving different branches of government separate functions and by forcing different governments to share power.
With these basic constitutional law principles guiding us, we can then analyze whether or how government is empowered to act in emergent situations to determine whether such actions are properly authorized. For instance, we know that (i) the legislative branch creates or makes the laws; (ii) the executive branch administers and executes the laws; and (iii) the judicial branch reviews and interprets the laws, including the actions of the other two branches of government. So how is it that an executive like the president, a governor, a regional or county leader, or a mayor, can wield his or her pen by signing an “executive order,” which authorizes the government to seize or “commandeer” private property, or to “shut down” certain businesses and liberties or not others? The answer to these questions can be found by determining whether those executive actions or mandates fall within the power of the executive branch or not. As an example, the executive orders issued by New Jersey Governor Murphy, which authorize the government to “commandeer” properties and to shut down “non-essential businesses,” both cite to prior legislative actions where the state legislature already made the laws in question, and the executive branch is now administering or enforcing those laws.
But when does the administration or execution of power seemingly authorized by legislation, and administered through an executive order, a forced shutdown or other similar action by federal, state or local agencies or officials (police or otherwise) go too far? That becomes a more difficult question to answer, but we take comfort in our recognition that the limits of executive power or legislative power are supposed to be reviewed by our courts. And, more specifically, the judicial review of the actions of the executive branch of government is not limited to whether that branch went too far and exceeded its own powers relative to the other branches of government. Judicial review would also apply to the question of whether one state or local government has acted in violation of the principles of federalism.
Unless state and federal constitution(s) are amended—which for the U.S. Constitution ordinarily requires (1) a two-thirds vote of both the U.S. Senate and the House of Representatives and (2) ratification by three-fourths of all 50 states—the protections and checks and balances imposed by them should provide Americans with some assurance that the violation of their rights, resulting from the enforcement of the law, even during our state of emergency, should afford them redress. And although individual rights may be deprived during the state of emergency, hopefully that deprivation will be temporary, the deprivation will not be so severe that it will cause irreparable harm to individual(s), and the state of emergency will be a distant memory by the time the deprivation can be reviewed by the judiciary to determine whether such deprivation entitles the deprived party to a viable remedy at law or in equity. And for those situations where the deprivation causes an emergency—such as irreparable harm, our courts can use their own emergent powers (like emergent injunctive relief) to perform their powers of judicial review.
For these reasons, we can be mindful and appreciative that, even during a time of emergency like we are now enduring, this is a nation of laws, and those laws can hopefully be made, executed, and interpreted consistent with the ideals that created our nation, in a way that will allow us to face this challenge, to endure, and to advance. While the founders’ vision is being stretched and put to the test, it has not been broken, and we attorneys play a vital role in maintaining their vision.
Anthony F. DellaPelle is with McKirdy Riskin Olson & DellaPelle, P.C., in Morris Plains, New Jersey.
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