COVID Response: Overstep of the Constitution?

As states, counties and municipalities across the country institute emergency measures to stem the tide of COVID-19 infection, concerns are being raised at all levels regarding the necessity, constitutionality and equity of these measures. In Stephens County, a local restaurant owner addresses county commissioners with those concerns, and in Athens/Clarke County, a local business owner sues the local government for violating both federal and state constitutions.

Across the Country, “shelter-in-place” has graduated from a hurricane and tornado season Across the Country, “shelter-in-place” has graduated from a hurricane and tornado season catchphrase to a way of life as government entities and officials, including federal, state and local authorities, issue executive and emergency orders in the face of a rapidly-spreading onslaught of confirmed COVID-19 infections.


And closely on the heels of those shelter-in-place and social distancing orders, followed a string of objections, constitutional challenges and charges of governmental overreach.

Governor Brian Kemp’s press conference on Monday, March 23, and his subsequent signing of Executive Order 03.23.20.01, instituted statewide “shelter in place” policy for individuals who are infected with COVID-19 or who are in other high-risk categories, a statewide mandate for a specific sector of private business – namely those licensed as bars – to shut off the lights and lock the doors, and ordered that “no business, establishment, corporation, non-profit corporation, or organization shall allow more than 10 persons to be gathered at a single location if such gathering requires persons to stand or to be seated within six feet of any other person.”


Many counties and municipalities within the state, including Stephens County, have adopted resolutions of support for the Governor’s action. In addition, several counties and municipalities have adopted local-level legislation expanding on the restrictions put in place by the governor’s Executive Order. Immediately following Kemp’s Monday evening press conference, Atlanta Mayor Keisha Lance Bottom signed a14-day Stay at Home Order for the city of Atlanta, ordering “all city residents are being directed to stay home except for essential services, essential activities, work or for government services.”


Kemp’s order drew objections from a wide array of organizations, businesses, and individuals. At one end of the spectrum, there were concerns expressed by healthcare providers and citizens that Kemp’s “shelter in place” mandate was not strong enough, as it only instituted stay-at-home policies for at-risk populations. Conversely, many business owners and individual citizens have expressed concerns about the financial hardships imposed by the governor’s order, and the potential inequity of enforcement of the mandates.


At Tuesday’s Stephens County Commission Meeting, held by teleconference in deference to the social distancing efforts to reduces the spread of COVID-19, Commissioners, before adopting a resolution to support Governor Kemp’s actions, heard comments from local business owner Steve Black.


“As a business owner...I am in full support of what the Governor said, 100 percent, and if it saves lives, I can guarantee you that not one of us, not me or any other restaurant owner in this town, will hesitate to close the doors,” said Black, owner of Junior’s Bar and Grill on Big A Road in Toccoa. “ But why single out the only place that is governed by the health department,” he added.


Kemp’s order does not make mention of restaurants, however, public emphasis, and potential heightened enforcement of the 10-people, 6-foot rule for restaurants, could result in irreparable financial harm, Black said, saying that he was already having to lay off 27 people due to the impacts of COVID-19.


“We sanitize every seat, we sanitize after every costumer, we sanitize every single little thing. You have more of a chance of getting something with this virus by going into Ingles and putting your credit card in and keypadding, or touching a gas pump handle that has never been sanitized inits history, or by going to Walmart and getting a box of cereal off the shelf that someone touched just before you and that’s never been sanitized,” he said. “If you’re going to enforce a 10-person limit, then someone needs to be standing at the door at Walmart or Auto Zone or all these factories that we’re sending everybody to, and make sure they’re separated by six feet,” he added, saying that what’s good for the “goose is good for the gander.”


County attorney Brian Ranck commented, saying that the resolution of support being considered by the county did not create any restrictions or directives, but only expressed support for the Governor's efforts to slow the spread of COVID-19.


“Some of the points you have made have are valid concerns,” he said to Black, “but those would need to be addressed to the state.”


In nearby Athens/Clarke County, the Mayor and Commissioners acted in advance of Kemp’s order, approving a March 19 ordinance ordering all residents to shelter in place and all businesses other than “essential services” to close. Several organizations, individuals and businesses have expressed concerns about the constitutionality of government actions forcing the closure of privately-owned businesses, and restricting the actions of lawful citizens. Earlier this week, Andrew Clyde, owner of Clyde Armory in Athens, and a congressional candidate in the upcoming election, filed a lawsuit against Athens/Clark County,


That (Athens/Clarke County Ordinance) is an unconstitutional overreach of local government. Flat out, no question whatsoever, Clyde told ConnectLocal in a March 25 phone interview. “That is why they ave to be challenged. If they were not challenged, it will set a dangerous precedent for the future.”

Clyde’s lawsuit, which asks for an injunction against the ordinance as well as compensation for lost revenues, has not been acted upon, and all non-essential court proceedings have been suspended due to a State Superior Court order.


“The court system is on hold until the 13th of April, but I believe there may be a video hearing set up in the very near future to address our concerns because we are asking for an emergency hearing,” Clyde said.


Clyde acknowledged that Clyde Armory is currently open for businesses, and explained that, although the county’s ordinance ordered businesses to close, a post on the Athens/Clarke County website grants an exception for gun stores.


“Athens/Clarke County has acknowledged on their website that the Second Amendment prevents the passing of an ordinance which closes gun stores, but the ordinance itself still stands,” Clyde told ConnectLocal. “Their website does not hold the force of the law like the ordinance does, and the changes on their website were made with no commission meeting, no votes, not public hearing and they are based on the subjective opinion from an unknown source, so the ordinance still stands and that is unconstitutional.”


The lawsuit filed by Clyde states that the actions of Athens/Clarke County exceed the authority of a local governing body.


“I don't know that the federal government would have the authority to do this, but I'm positive the local government doesn’t,” he said.


Clyde said he understands that the country and the state are facing a medical situation requiring unique measures to stop the spread of COVID-19, but said that no situation justifies a violation of both the US Constitution and the Constitution of the Sate of Georgia, and that it is the issue of the government forcing its mandates as opposed to it being a voluntary measure.


“I believe in the social distancing, I believe we all need to take the proper safety precautions, and that is what we are doing,” he said. “But we don’t relent on the Constitution, no matter the situation.”


In addition to the hardships placed on business owners by the mandated closure of businesses, Clyde said the “shelter-in-place” mandate of the ordinance also violates Constitutional protections.


“That is a violation of due process for the people of Clarke County and a violation of the equal protection guarantees under the Constitution of the United States and the Constitution of Georgia, and that is wrong, they can’t do that,” he said. “They can’t incarcerate people in their homes under threat of criminal penalty… you cant do that without due process of law; you cant do it en-masse to a group of people, you can only do it by individual case and only then if the individual has a contagion. You can’t mass quarantine everybody.”


This morning, ConnectLocal contacted the Georgia Department of Public Health to obtain clarification on a number of details addressed in this story. Responses to all questions posed by ConnectLocal indicate a process in flux.


When questioned regarding which executive or public health orders in regards to the COVID-19 response specifically mandates restrictions or closures for restaurants or orders them to close dining rooms or only offer carry-out and delivery services, the DPH representative responded “There is a document for restaurants. It is my understanding it is being revised. I will send it as soon as I get it.” Likewise, when ConnectLocal submitted a set of questions regarding Governor Kemp’s Executive Order 03.23.20.01, a DPH representative responded this morning saying “We are awaiting guidance from the state on these issues. I have forwarded your request to the state office so they have specific questions.”


ConnectLocal will update this story as new information is provided by the Georgia Department of Public Health.


Update: Response from GDPH regarding restaurant regulations.


FYI

United States Supreme Court


Wall. (71 U.S.) 2; 18 L. Ed. 281 (1866)

Mr. Justice Davis, Opinion of the Court.

... The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority.


FYI

According to the CDC website:


"The federal government derives its authority for isolation and quarantine from the Commerce Clause of the U.S. Constitution.


"Under section 361 of the Public Health Service Act (42 U.S. Code § 264), the U.S. Secretary of Health and Human Services is authorized to take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states.

The authority for carrying out these functions on a daily basis has been delegated to the Centers for Disease Control and Prevention (CDC)."


FYI

The Contracts Clause of the Constitution prohibits the states from interfering with lawful contracts, such as leases and employment agreements.


The due Process Clause of the Fourteenth Amendment prohibits the states from interfering with life, liberty or property without a trial at which the state must prove fault.


The Takings Clause of the Fifth Amendment requires just compensation when the state meaningfully interferes with an owner’s chosen lawful use of his property.


Protections in the First Amendment guarantee the natural right to associate and the judicially recognized right to travel.


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