The State of Michigan just put you under house arrest. Under threat of criminal arrest, you’re ordered to stay home unless you’re doing something “essential.” You’ve been put in jail. Some of you get work release.
You can’t go have a cup of coffee with your neighbor. (The stay at home order says: “Subject to the same exceptions, all public and private gatherings of any number of people occurring among persons not part of a single household are prohibited.”) The State of Michigan has outlawed the right to assemble in both public and non-public forums.
Can they do that?
Can a state quarantine healthy citizens for public health reasons?
For sure, it’s a move that’s unprecedented in American history. Prior quarantine orders for public health threats involved only sick individuals. The only generalized quarantine in U.S. history that I can find occurred in Portland, Oregon during the Spanish flu epidemic. Even that quarantine didn’t confine healthy people to their homes. Instead, they quarantined households with illness, and they prohibited public group assemblies.
The federal Center for Disease Control says that they have the right, but their powers end at U.S. borders. All they can do is stop people from coming in. Despite public clamoring for it, President Trump doesn’t have the authority to issue a nationwide quarantine either because of the constitutional right to interstate travel. The only authority with the power, if in fact, the power exists at all, is under state police powers. The question is whether the current exercise of state police power to quarantine healthy citizens runs afoul of the constitutional rights to assemble, self-express, travel and contract.
Can the State of Michigan outlaw the constitutional right to assemble?
The U.S. Supreme Court says that constitutional rights are subject to reasonable time, place and manner restrictions. The amount of scrutiny that applies to decide if restrictions are reasonable depends on whether the restrictions are content-neutral. In other words, did the state ban all public assembly, or only certain types?
The current quarantine order is not content-neutral. You have the right to go to work, but only if you’re “essential.” You can go to the grocery store but not the dry cleaners. You can go to the doctor for “essential” medical treatment, but not to get your annual physical. The distinction between content-neutral restrictions and content-discriminatory restrictions is significant, because content-based prohibitions are subject to additional judicial scrutiny. If content discriminatory, the restriction must be narrowly drawn to achieve a compelling state interest.
In the case of content-specific restrictions, the government must use the least-restrictive means to accomplish their objective. In addition, according to the U.S. Supreme Court case Saia v. New York, a restriction on the right to assemble and express yo’self is unconstitutional if it is so narrowly tailored that it prevents all opportunities to exercise your constitutional rights. Since, today, you have no opportunity to have coffee with your neighbor or even go to an AA meeting, the state quarantine law runs afoul of federal constitutional protections for this reason, too.
Okay, so Dirty Traverse, aren’t the stay at home restrictions reasonable given the seriousness of COVID-19?
Think of all the ways that the State of Michigan could accomplish the same objective with less-restrictive means. It could quarantine only the elderly, or those most at risk. It could require us all to wear face masks. The State could ban hand-shaking. They could mandate sanitization of surfaces. They could extend sick-time policies to allow sick or exposed people to stay home from work. There are probably hundreds of less-restrictive ways to slow the spread of a virus than house arresting the entire Mitten State. As long as there is one less-restrictive means, the State of Michigan house arrest order is unconstitutional.
In addition, the State of Michigan order doesn’t leave open any options for legal forms of self-expression – coffee with neighbors, the half-dozen people who always seem to be protesting downtown on Front Street, etc. You have to give them some way to continue to do it. As long as there is no way for citizens to exercise their constitutional rights, the quarantine law is unconstitutional.
Even the State of Michigan seemed to agree at one point, in a web publication, that isolation and quarantine orders are only appropriate when there is specific information that a person may have been exposed to a contagious disease.
The State of Michigan quarantine order and your due process rights
You have the right to due process of law before deprivation of your liberties. In theory, you should be able to file a habeas corpus petition in your local court. Some representative of the State of Michigan should have to show up at the hearing and prove that you, personally, pose a risk to the public and that the restrictions placed on you are narrowly tailored and reasonable in time, place and manner.
If only the courts were open. Michigan appears to have shut down opportunities to challenge the law by closing the courts.
You’re under house arrest. You deserve dinner.
When the government detains you, they must provide for your basic needs. Your basic needs include shelter, health care, medication, food and sanitation. Someone likely told Governor Whitmer of this obligation, because she put an exception in the law for going to get food, medication and critical health care. I would argue that “essential” health care, which is all that is allowed right now, is not providing for health care, but that’s another article. And what if you can’t go out? Since the government is detaining you, the government is supposed to be making arrangements for you to have all of these basic needs met without you having to rely on family members and neighbors that you’re not allowed to lawfully assemble with anyways.
As of this writing, the ACLU has not condemned the quarantine on their website. I also cannot find any indication that the ACLU is challenging the house arrest on anyone’s behalf. The Mackinac Center for Public Policy isn’t doing anything about it, either.
In addition to a violation of the constitutional right to assemble and self-express, the stay at home order is likely also a violation of our right to be free from arrest and detention without cause and due process of law.
This opinion might be unpopular, but it’s the truth. How is no one else speaking out that our most basic liberties have slipped away, and that no one even fought to save them?
Someone posted a comment on this site that they were concerned I hadn’t yet added a banner explaining what I was doing to combat the COVID-19 pandemic. I can’t tell if the comment was meant to be satire or not. Regardless, since you asked, what I am doing to combat COVID-19 pandemic is binge watching Ozark. Now you know I’m socially responsible.