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Constitutionality of Emergency Orders – Just How Long Can It Go On?

Constitutionality of Emergency Orders – Just How Long Can It Go On?

These are unprecedented times in America, and federal, state, and local governments have taken unprecedented measures in response to the COVID-19 pandemic. But as the emergency orders have expanded in scope and duration, citizens have begun to protest in greater numbers that these restrictions are “unconstitutional.” Are they? The answer is a complicated one.

There is no question that governments are empowered by the Constitution to take extraordinary measures during times of emergency. In Jacobson v. Massachusetts (1905), the U.S. Supreme Court upheld a state law requiring smallpox vaccinations, saying that “the Constitution does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. A community has the right to protect itself against an epidemic.”

However, that governmental power is not unlimited; actions that would ordinarily violate a citizen’s constitutional rights are subject to “strict scrutiny,” which means they must be narrowly tailored to further a compelling government interest. The government obviously has a compelling interest in stopping or slowing the spread of a pandemic, so the real question is whether a governing body’s emergency orders are “narrowly tailored” to that goal – in other words, is the governmental edict the least restrictive way for the government to achieve its goal of defeating the virus.

The Texas Disaster Act of 1975 gave sweeping powers to the state, and specifically the governor, to act during times of crisis. Governor Greg Abbott declared a statewide disaster on March 13, 2020, triggering the state’s emergency police powers, and has since issued a series of executive orders in response to the COVID-19 outbreak, including a statewide shutdown of schools and non-essential businesses. Most Texas counties and cities followed with their own disaster declarations and their own emergency orders. Harris County Judge Lina Hidalgo attracted much attention and controversy on April 22, 2020, when she signed an order mandating that all persons wear masks to cover their faces when outside. The Harris County order carries a fine of $1,000 for violators; the Texas Disaster Act also authorizes jail time of up to six months for scofflaws.

The Texas Disaster Act authorizes the governor (and, by extension, county judges and city mayors) to order evacuations of disaster areas and to “control ingress to and egress from a disaster area,” which has been interpreted to allow for quarantines in an epidemic. But it does not specifically authorize the shutdown of schools or businesses, as the governor’s order did, or the requirement of citizens to wear masks, as the county judge’s order did. Do these orders further the compelling government interest of slowing the spread of the COVID-19 virus? Almost certainly. Are they the least restrictive ways of achieving that interest? The answer is… probably, and for now.

Ultimately, the constitutionality of these executive orders may come down to time and scope. The governor has the authority to take drastic measures like closing businesses and mandating social distancing – but only temporarily. A long-term shutdown of businesses, schools, or even gatherings would likely amount to an unconstitutional taking of private property and a prohibition against free assembly. A long-term requirement for citizens to wear masks would likely amount to an unconstitutional extension of the county judge’s emergency powers under Texas law. And levying heavy fines or particularly sentencing offenders to jail would face heavy constitutional scrutiny as not being the least restrictive ways to achieve the government’s objectives.

So, are these national, state, and local emergency orders constitutional? The answer is probably yes – for now.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.

Drew Shirley is a Houston attorney with experience in tort and business litigation and business and real estate transactions. Shirley graduated cum laude from Duke University, then received two advanced degrees – a master’s in journalism and a law degree – from the University of Texas at Austin. He joined the Randle Law Office in 2015.

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