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    State authority, individual rights clash amid pandemic

    April 27, 2020

    In Kentucky, at least two lawsuits have been filed against officials for restrictions on religious groups’ ability to meet in a room and congregate in a parking lot. In North Carolina, non-resident homeowners sued local authorities after being turned away en route to their beach homes for fear they would spread COVID-19. And in Minnesota, the state’s attorney general charged a landlord who refused to comply with a statewide delay on evictions.

    Challenges to states’ authorities during the current pandemic resulted in public demonstrations like a recent protest at the Michigan State Capitol.

    Challenges to states’ authorities during the current pandemic resulted in public demonstrations like a recent protest at the Michigan State Capitol.

    Elaine Cromie-Stringer / Getty Images

    As an ABA Legal Fact Check posted on April 22 explains, the global pandemic has spawned numerous court actions in the U.S. At issue is what happens when state powers under the 10th Amendment clash with constitutional liberties such as the right to practice religion, travel across state lines or enforce contracts.

    Typically, the judiciary looks to the U.S. Constitution and U.S. Supreme Court precedent for guidance. But with the unique circumstances raised by this pandemic, application of the law and earlier Supreme Court rulings do not always provide clear-cut answers.

    Take the case of a church in Greenville, Mississippi, which challenged a local ban on drive-in services. In 1905, the U.S. Supreme Court upheld a public health order in Massachusetts, saying the Constitution “does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” But the court also said government restraint must not be exercised in an “arbitrary and oppressive manner.”

    In a filing supporting the church, the U.S. Department of Justice suggested the church faced “distinctive treatment” because other city establishments, such as restaurants, were permitted to offer drive-thru carryout. The next day, Greenville reversed its policy and announced that similarly conducted religious services could be held.

    The U.S. Supreme Court has also ruled that “the constitutional right to travel from one state to another ... has been firmly established and repeatedly recognized.” But how does that liberty stand up in the context of a global pandemic when a governor or local official of one state bars or quarantines individuals of another solely based on license plates?

    As the ABA Legal Fact Check points out, state governors and local officials have wide latitude to enforce their directives during an emergency, such as the COVID-19 pandemic. But the exercise of their authority cannot be overbroad. Judicial review, guided by the Constitution and Supreme Court precedents, will have the last word.

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