In the worst days of the novel coronavirus outbreak in March and April, as urban hospitals became increasingly overwhelmed and death rates soared, for a brief moment America’s political polarization was put on hold and a frightened nation was largely supportive of sweeping orders from Governors to “stay home and save lives.”
Unsurprisingly, as months have passed and the virus has loosened its grip on the hardest-hit metropolitan areas, a desire has arisen to return to “normal life.” This has been buttressed by decreased risk of contracting COVID. And more people have begun to venture out of their homes and slowly begin again to roll the wheels of commerce and social activity.
States, too, slowly began phasing out lockdown restrictions and opened the legal doors to activities that, until a few months ago, most citizens took for granted. Yet the pace at which they have moved varies widely.
In the pandemic’s early period, the emergency executive authority employed by Governors to halt society was widely welcomed and supported. However, as the virus’ trajectory improved, more people have begun to question the strong hand many states have kept on business, religious life, education and a slew of other activities.
The national debate has already become part of the story of the pandemic and, in an age of hyper-politicization, the fight over the pace of opening and even the level of threat posed by the virus itself has become a partisan struggle.
For New York residents and especially Orthodox Jews, the question was addressed forthrightly by a federal judge who — in ruling that guidelines governing houses of worship must be loosened to put them on equal footing with other permitted activities — rebuked Mayor Bill de Blasio and Governor Andrew Cuomo, saying that the state’s policies on the matter amounted to a “curtailment of fundamental rights without compelling justification.”
The ruling is based largely on the officials’ support for protests sparked by the death of George Floyd while they simultaneously restricted many activities with similar risk levels — an approach the court ruled was unconstitutional.
While the opinion is a clear victory for those saying that the state failed in its obligation to accommodate religious practice as the pandemic lessened, it remains to be seen if courts will take a similar approach to a long list of pending litigation from retailers, Jewish overnight camps and others.
One significant impediment they seem to face is a Supreme Court ruling against a California church saying that states have wide leeway in times of emergency and that social distancing measures had not singled out religious exercise.
These and myriad issues that have arisen since the onset of the pandemic have led to fundamental questions on the nature and limits of state’s emergency authority, and how long such power should remain.
Who Made You Boss?
On March 9, a day before Purim, Governor Cuomo declared a state of emergency for six months which largely authorized his administration to commandeer necessary supplies and equipment to fight the pandemic — joining several other states that had already taken a similar route. Eleven days later, he issued an executive order to “pause” all non-essential business and forbade gatherings of more than 50 people (a number that would be lowered to 10 shortly afterward).
Last week, New York proudly announced that for the first time since March it had fewer than 1,000 COVID patients in hospitals. In much of the state and even in the city that was once the virus’ epicenter, restrictions have loosened, but a robust regime of restrictions remains in place, all by mere dint of the Governor’s signature.
“I think that when you deal with an issue of constitutional import there has to be a rolling mechanism in place to make sure that the state doesn’t end up trampling on people’s basic rights, especially as the facts of the situation change,” said Dennis Rapps, Director of the National Jewish Commission on Law and Public Affairs (COLPA). “There needs to be some oversight and an objective standard of risk levels — that never happened here. It’s understandable that government needed extra leeway here, but we remain a country of laws, and there must be an obligation to show that the steps you are taking are justified.”
Much of the authority wielded by governors has its roots in the Emergency Health Powers Act. Enacted in various forms in many states, the law was developed nearly two decades ago to help government respond to the threats of bioterrorism or pandemics. At the time of their introduction, the bills drew strong criticism from some civil liberties advocates who warned that they lacked sufficient checks and balances and awarded power to administrations.
As the COVID pandemic evolved, legislators in several states have introduced bills or petitioned governors to subject their emergency authorities to a more collaborative process, but few have made headway.
Kansas’ Republican legislature approved a bill aimed at limiting the emergency powers of Democratic Governor Laura Kelly, but the measure was vetoed.
A bill to restrict the New York Governor’s emergency declaration to 30-day periods, with extensions requiring the approval of the legislature, was introduced by two upstate Assembly Democrats. A similar proposal would also allow for county leaders to request a local lifting of emergency measures and subject any law that limited freedom and speech, worship, or personal property to judicial review. Yet, neither bill has gained traction in Albany.
In Pennsylvania, the struggle has become more complicated. Both houses of its legislature approved a measure that Governor Tom Wolf must rescind his state of emergency, but the Governor himself contends that he is not obligated to do so — giving way to a unique legal battle.
Mark Rozell, Dean of the Schar School of Policy and Government at George Mason University, recently authored several articles criticizing Virginia Governor Ralph Northam for what he saw as a lackluster response to the outbreak’s early stages and poor coordination of reopening efforts as the number of cases has dropped. He voiced strong support for unilateral gubernatorial authority in the face of the pandemic and cheered the actions of Governors Cuomo, Ohio’s Mike DeWine, and Maryland’s Larry Hogan, but cautioned that such powers need built-in limits.
“Emergency powers should not exist without countervailing powers to check any excess by governors; the danger is when emergency powers become regularized and sometimes it’s hard to draw a distinction,” said Professor Rozell. “Ideally a state’s constitution should enable the legislature to rescind emergency authority, which is a good check, since that is not something they are going to do without strong public support.”
Least Restrictive Means?
Movements to limit emergency measures by governors are largely driven by concern over the economic effects of shutdowns.
The Constitution and court decisions regarding government’s obligation to put religion on equal footing with other services and, when necessary, to restrict expressions of faith using the “least restrictive means,” sets a much higher bar for executive orders to shut down or limit First Amendment rights.
While initial claims by religious groups that social distancing measures violated their rights were treated dismissively by many, accusations of disparate treatment in the wake of mass protests has made their argument appear more compelling.
Michael A. Helfand, a professor at Pepperdine University’s School of Law, said that officials’ decision to allow protests to continue while limiting public worship did not inherently constitute open discrimination, but that the claims might still have merit.
“There was a risk calculation that protests were intended to be for a short duration of time and so they were tolerated, whereas if you open up a house of worship that is a gathering, that will continue to happen regularly,” he said. “The problem is when government demonstrates that its calculus is not primarily based on risk but on the value of the activities in question.”
Mayor de Blasio’s now infamous response to a question from a Hamodia reporter justifying different standards toward protests as opposed to retail businesses and religious services, saying that the two are “not the same question,” due to “400 years of American racism,” Professor Helfand said was sufficient to call the government’s actions into question.
“I think that there was very good reason to assume these regulations were made in good faith, but as discrepancies get bigger and when some government officials appear to be making decisions on the value of religion, it’s increasingly hard to keep on assuming that good faith,” he said. “You end up with a toxic cocktail which seems to justify faith communities taking action to say ‘that’s not what the Constitution allows.’”
Judge Gary Sharpe agreed, ruling last week that laws limiting outdoor religious worship to 10 people and indoor gatherings to 25% of capacity, were indefensible as protests have been allowed to take place unfettered despite blatant disregard for social distancing and that restrictions governing some similar secular activities were more lenient. In his decision, Mayor de Blasio’s statements, as well as the Governor’s clear support for protests, loomed large.
“[B]y acting as they did, Governor Cuomo and Mayor de Blasio sent a clear message that mass protests are deserving of preferential treatment,” he wrote.
While acknowledging the difficulty officials have faced in addressing the pandemic and crediting some of the bold moves Governor Cuomo and the Mayor have made, the Judge minced no words in saying that the two leaders had found their way to the limits of their executive authority — despite the emergency they were tasked with addressing.
“Having carefully reviewed the relevant issues, and with a firm understanding that the executive branch response to the pandemic has presented issues with a degree of complexity that is unrivaled in recent history, it is plain to this court that the broad limits of that executive latitude have been exceeded,” said Judge Sharpe.
An issue that remains unanswered at the time of this article’s publication is whether a suit challenging Governor Cuomo’s decision to ban overnight camps will find similar favor before a different New York federal judge. This case, too, rests its arguments largely on the same seemingly preferential treatment the George Floyd protests received, while arguing that the religious nature of Jewish camps demands more consideration from the state than the plaintiffs feel they received.
The limits of emergency authority in America is not a new subject, but while the COVID crisis has shined a light on governors, its best known chapters are from the federal level. The Supreme Court ruled against President Abraham Lincoln’s suspension of the need for a writ of habeas corpus during the Civil War. In 1952, President Harry Truman’s attempt to take over steel mills in the midst of a strike, using powers granted to him to fight the Korean War, was also disallowed by the high court.
More recently, President Donald Trump’s attempt to appropriate funds for the construction of a border wall by declaring a state of emergency over illegal immigration resulted in a protracted legal battle which has yet to be fully resolved.
As uncertain as the future of the pandemic is, so, too, questions remain as to whether the emergency authority used will have a long lasting effect on American government. Professor Rozell posited that the instances where state constitutions allowed local officials to take divergent approaches from those advocated by Governors might lead lawmakers to look for ways to raise the level of consolidated power in times of crisis.
“When the post-COVID analysis is done there will be a lot of criticism of how federalism affected the response,” he said. “We could see more tolerance for stronger gubernatorial action in emergencies.”
The fate of the many legal challenges to Governors remains unknown, and many might be moot by the time they would be decided. Still, Mr. Rapps welcomed the suits brought by the Jewish community and other faith groups, saying that they play a valuable role in guarding against future abuses of the wide powers granted to executives in emergencies.
“The real danger is if these issues would not be resolved by the time another emergency develops,” he said. “If governors see that they can take liberties and not face any consequences, you don’t know where it will lead to. That’s why it’s important to go to court and say ‘that’s not the way we do business in this country.’”