The growing coronavirus pandemic has forced millions of Americans to make a once-in-a-lifetime tradeoff: temporarily relinquishing numerous individual rights to protect public health.
Consider what has happened in just the last two weeks.
Churches, synagogues, and mosques have closed their doors to congregants while thousands of small businesses in parts of the country have been forced to shut down.
Courts have delayed trials despite the American constitution’s guarantee of a speedy trial while families and lawyers are barred from visiting inmates at state and federal jails and prisons.
People walk around Washington square park as the coronavirus disease (COVID-19) outbreak continues in New York, U.S., March 22, 2020.
Across the country, residents have been ordered to avoid large public gatherings. In California, New York and other hard-hit states, more than 80 million people have been ordered to “shelter in place” to avoid contracting or spreading the virus. All of which has raised questions about freedom of movement and the right to travel.
It’s not just the freedom to assemble or operate a business that many Americans have been forced to give up. Democratic norms such as government transparency have been affected as well. States and municipalities have suspended so-called open meeting laws that ensure citizens access to the inner workings of government.
Experts say these civil liberties strictures are unprecedented. Never before have the federal government and all 50 states declared states of emergency in response to a public health disaster, according to James Hodge, director of the center for public health law and policy at Arizona State University.
“As a nation, we’ve thrown at COVID-19 every foreseeable type of emergency declaration that we can issue,” Hodge said. “We’re doing it in a way that is trying to calibrate and balance civil liberties and consistent with the threats and risks that we face.”
The declarations have in turn enabled officials to take sweeping measures, from relaxing regulatory standards for vaccines and treatments to restricting people’s movement and ability to assemble.
The measures are based on a long-recognized legal principle: extraordinary circumstances can justify extraordinarily action.
“Pandemics can justify restrictions that burden civil liberties much more than we’d normally tolerate – but perhaps they can’t justify restrictions that completely deny some right,” said Eugene Volokh, a law professor at the University of California at Los Angeles.
The crisis in the U.S. has rapidly grown in the past week or two, with reports of more than 46,000 coronavirus cases of more than than 580 deaths as of early Tuesday.
Judie Shape, center, who has tested positive for the coronavirus, but isn’t showing symptoms, presses her hand against her window after a visit through the window and on the phone with her relatives, March 17, 2020, in Kirkland near Seattle.
Protecting public health while protecting constitutional rights is a balancing act — and a recurring theme in American history. Ben Franklin, one of America’s most beloved founding fathers, once said, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”
For Volokh, a libertarian constitutional scholar no less, Franklin’s famous line cries out for an update amidst the country’s worst public health disaster in more than a century.
“Those who would give up essential Safety, to purchase a little temporary Liberty, deserve neither Liberty nor Safety,” Volokh wrote in a recent blog post.
It is a message that Americans are increasingly embracing despite pushback by some individuals. Rabbi Jack Moline, president of the Interfaith Alliance in Washington, said American churches, synagogues and mosques have heeded calls to limit – and in some cases eliminate — public worship.
“What we’re balancing here is the safety of the general population and the sacredness of individual rights,” Moline said. “As long as everyone is being treated equally in the public interest, I think Americans will absorb the temporary limits on some of their freedom of expression.
“While authoritarian countries such as China have a freer hand in taking hardline steps, U.S. laws governing emergency declarations such as the National Emergencies Act come with constitutional protections that can’t be put aside, said Latisha Nixon-Jones, an expert on disaster laws at the University of Oregon.
“All of these things (National Emergencies Act, the Stafford Act), when crafted by our own legislature have taken into consideration our own constitutional rights,” Nixon-Jones said.
But just how far the government can go before it bumps into violating rights is a question many scholars are asking. Volokh said he worries that officials might use the current crisis as a convenient excuse to impose unrelated restrictions.
In California, the mayor of San Jose, the state’s third-largest city, last week declared that “gun stores are non-essential.” In Ohio, the state attorney general ordered several health clinics to stop non-essential abortions.
Volokh said it “might not be OK to completely close abortion clinics or gun stores [even alongside all other businesses] if the result is that people just can’t get abortions or guns at all.”
On the other hand, banning political rallies might be acceptable because “people can still speak and organize political action online,” Volokh said.
Hodge said restrictions such as suspending certain patients’ privacy rights and barring visitors to prisons are justified during the pandemic.
“Can we do that without violating constitutional rights? Yeah, absolutely,” Hodge said.
What is unlikely to pass constitutional muster is what China did to fight the virus, ranging from complete lockdowns of entire cities enforced by guards to digital surveillance of at-risk residents to mass testing.
While successful in China and elsewhere, such methods are too draconian and unlikely to be tried in the United States, Hodge said. While authorities have the power to quarantine large groups of infected individuals, large-scale domestic travel bans and cordon Sanitaire are constitutionally problematic.
“We’re not an authoritarian nation,” U.S. Surgeon-General Jerome Adams said during a recent “Fox & Friends” interview. “So we have to be careful when we say, ‘Let’s do what China did, let’s do what South Korea did.”
Rabbi Moline warned that Americans’ tolerance for the civil liberties restrictions will run out once the crisis is over.
“The time I’d begin to worry is if the emergency is lifted and there were some continuation of the restrictions on our civil rights that are necessary in crisis but unnecessary when there is no crisis,” he said.
WASHINGTON – President Donald Trump said Sunday that three U.S. automakers – General Motors, Ford Motor and Tesla — have been “given the go ahead” for fast-paced production of ventilators and other metal products needed to treat Americans infected by the deadly coronavirus.
“Go for it auto execs, let’s see how good you are,” Trump said on Twitter.
Ford, General Motors and Tesla are being given the go ahead to make ventilators and other metal products, FAST! @fema Go for it auto execs, lets see how good you are? @RepMarkMeadows @GOPLeader @senatemajldr
— Donald J. Trump (@realDonaldTrump) March 22, 2020
The Republican Trump is under attack from some opposition Democrats for not invoking 1950s Korean War-era powers to force American companies to manufacture medical equipment to fight the coronavirus infections, but he so far has resisted a direct order while praising voluntary efforts by U.S. corporate giants.
In another tweet, Trump thanked Frederick Smith, chief executive of the FedEx package delivery service, “for the rapid emergency deliveries you are making all over our Nation. Keep it going!”
Federal Emergency Management Agency administrator Peter Gaynor told CNN on Sunday that Trump hasn’t invoked the Defense Production Act to force companies to manufacture masks, ventilators and other crucial medical supplies because they are being made voluntarily.
“It’s happening without using that lever,” Gaynor said.
President Donald Trump speaks during a coronavirus task force briefing at the White House, March 20, 2020.
Trump on Friday said, “Amazing things are happening. We are getting calls from automobile companies and other companies saying they have capacity and they want to make ventilators and other things. We are literally being besieged in a beautiful way by companies that want to do the work and help our country.”
But some Democrats said the volunteer corporate effort is not adequate.
FILE – Gov. J.B. Pritzker gives a news conference on April 30, 2019, in Springfield, Ill.
Illinois Gov. J.B. Pritzker, himself a corporate titan as part of the family that owns the Hyatt hotel chain, told CNN that states like his are “competing against each other, we’re competing against other countries” for medical supplies.
“And indeed we’re overpaying, I would say, for [personal protective equipment] because of that competition,” he said.
Pritzker said he’s gotten only a fraction of the masks, gloves and gowns he has requested from the federal government. So Pritzker said he is using Illinois state workers to purchase supplies internationally on the open market.
“I’ve got people on the phones, working the phones across the world, frankly, to get this stuff shipped to Illinois,” Pritzker said.
Another Trump critic, Congresswoman Alexandria Ocasio-Cortez of New York, urged him to invoke the war powers act, saying his reluctance to do so would “cost lives” in her state, one of the hardest hit in the U.S. by the coronavirus.
“We’re thankful to anyone who’s pitching in on this effort,” she said, “but we are nowhere near the beds and the capacity that we need in this country.”
“We’re hearing it every step of the way from this administration,” she said. “First we were hearing it was a hoax. Then we were hearing that everything was fine. Then we were hearing that the fundamentals of the economy [were] OK until the crash comes. And we cannot wait until people start really dying in large numbers to start production.“
Trump later responded on Twitter, saying that Pritzker and “a very small group of certain other Governors, together with Fake News CNN & Concast (MSDNC), shouldn’t be blaming the Federal Government for their own shortcomings. We are there to back you up should you fail, and always will be!”
[email protected], Governor of Illinois, and a very small group of certain other Governors, together with Fake News @CNN & Concast (MSDNC), shouldn’t be blaming the Federal Government for their own shortcomings. We are there to back you up should you fail, and always will be!
— Donald J. Trump (@realDonaldTrump) March 22, 2020
There are more than 27,000 confirmed cases of coronavirus in the U.S. and at least 323 deaths, figures that are growing by the day.
But Dr. Anthony Fauci, director of the U.S. government’s National Institute of Allergy and Infectious Diseases, told the CBS show “Face the Nation,” that he does not think that the U.S. will become like Italy, which now has surpassed China as the country with the highest death toll.
The reason for his optimism, he said, was because U.S. officials have emphasized the need for Americans to practice safe physical separation from other people to avoid becoming infected.
WASHINGTON – The U.S. Senate will vote again Monday on a massive $1.8 trillion economic aid package that would send money to most Americans and many businesses severely impacted by the deadly coronavirus.
The measure failed to advance Sunday, but Majority Leader Mitch McConnell said unless an agreement is reached with Democrats who opposed some of the bill’s contents, lawmakers will hold another vote Monday morning.
The aid package is aimed at boosting the U.S. economy by sending direct payments to more than 90% of Americans and a vast array of U.S. businesses to help them weather the immediate and burgeoning economic effects of the coronavirus.
Democrats say the measure gives too many benefits to corporations, and instead they want more federal money for community health centers, nursing homes, masks, ventilators, personal protective equipment and aid to state and local governments to battle the COVID-19 pandemic.
FILE – Traders at the New York Stock Exchange listen to President Donald Trump’s televised White House news conference, March 17, 2020.
The bill’s failure to pass Sunday’s procedural vote sent lawmakers back to additional negotiations while U.S. futures markets tumbled.
Wall Street is coming off its worst week since 2008 and investors are looking to Congress and this rescue package to stem the losses.
House Speaker Nancy Pelosi said Sunday that House Democrats are finalizing their own version of an economic rescue package that “recognizes the gravity of the coronavirus challenge” and is a “big difference” from the bill backed by Senate Republicans. The two chambers will eventually have to reconcile their proposals.
Senate Majority Leader Mitch McConnell lashed out at the Democrats.
“If we aren’t able to act tomorrow, it will be because of our colleagues on the other side continuing to dicker when the country expects us to come together and address this problem,” he said.
His Democratic counterpart, Sen. Chuck Schumer, said the problems with the bill could be overcome and that talks continue, including with Treasury Secretary Steven Mnuchin.
“Our caucus is united in trying to deliver a bill that addresses this health and economic crisis quickly and we’re committed to working in a bipartisan way to get it done, both sides of the aisle voting for a bill,” Schumer said.
FILE – Treasury Secretary Steven Mnuchin testifies on Capitol Hill in Washington, March 11, 2020, before a House Appropriations subcommittee hearing on the FY’21 budget.
Among other elements, the lawmakers were at odds over a $425 billion pool of money for loans and loan guarantees that Republicans want to create, which some opposition Democrats have labeled as a “slush fund” because they believe the Treasury Department would have too much discretion in deciding who receives the money.
Congress had hoped to send Trump the legislation by midweek, but it was not clear whether the stalemated talks would affect that timetable.
Even as the lawmakers talked, Sen. Rand Paul of Kentucky, an ophthalmologist by profession, announced that he had contracted the coronavirus, the first senator and the third member of Congress to test positive.
Two other senators who had contact with Paul – Mitt Romney and Mike Lee, both of Utah – announced they are in self-quarantine.
Aside from the obvious impact of the public health crisis, perhaps 2 million or more U.S. citizens have been laid off from work as thousands of schools, major businesses and such community enterprises as gyms, restaurants, bars and stores have shut their doors, either voluntarily or under state and local government orders.
Governors in seven states – New York, New Jersey and Connecticut in the East, Illinois and Ohio in the U.S. heartland, Louisiana in the South, and California on the Pacific Coast – have ordered millions of people to stay home, in effect quarantined to prevent the spread of the coronavirus.
The toll from the coronavirus is mounting in the U.S., with about 34,000 confirmed cases and 450 deaths.