Over the last six months, many have wondered: how can governors issue executive orders closing businesses and directing us to remain in our homes, except as the government permits us occasional outings? What happened to the Constitution? Federal judge William Stickman addressed those questions today, as he ruled substantial portions of Pennsylvania Governor Tom Wolf’s shutdown orders unconstitutional:
The declaratory judgment says “(1) that the congregate gathering limits imposed by defendants’ mitigation orders violate the right of assembly enshrined in the First Amendment; (2) that the stay-at-home and business closure components of defendants’ orders violate the due process clause of the Fourteenth Amendment; and (3) that the business closure components of defendants’ orders violate the Equal Protection Clause of the Fourteenth Amendment.”
In his written opinion, Stickman noted that the Wolf administration’s actions “were undertaken with the good intention of addressing a public health emergency,” but that “even in an emergency, the authority of government is not unfettered.”
“The liberties protected by the Constitution are not fair-weather freedoms — in place when times are good but able to be cast aside in times of trouble,” Stickman wrote. “There is no question that this country has faced, and will face, emergencies of every sort. But the solution to a national crisis can never be permitted to supersede the commitment to individual liberty that stands as the foundation of the American experiment. The Constitution cannot accept the concept of a ‘new normal’ where the basic liberties of the people can be subordinated to open-ended emergency mitigation measures.
“Rather, the Constitution sets certain lines that may not be crossed, even in an emergency. Actions taken by defendants crossed those lines. It is the duty of the court to declare those actions unconstitutional.”
The court’s ruling addressed Wolf’s original, highly draconian stay-home order, which has since been modified. Plaintiffs did not, in this case, challenge the occupancy restrictions in later orders, or the later order that purports to require wearing masks. He did, apparently, address the equal protection violation of closing some businesses (small ones, in most states) while allowing other businesses (big ones) to remain open.
The constitutional status of the shutdown orders that have been issued in nearly all states will be debated, and litigated, for years to come. For now, at least, a blow in favor of freedom and the Constitution has been struck. The idea that the Constitution becomes a dead letter whenever there is an “emergency”–in this case, a pale excuse for an actual emergency–must be, and I hope will be, repudiated. Today’s ruling is the first step in a long process. How that process ends may depend on who wins this year’s presidential election. It is hard to picture a Supreme Court with a majority of Democratic activists placing any meaningful restraints on governmental powers, regardless of what the Constitution says.