Simone Lawson
The COVID-19 pandemic has raised questions about the constitutionality of government powers to shut down private businesses. In the US, state and local governments have closed restaurants, bars, gyms, and schools to curb the spread of the virus, sparking debates about the limits of executive authority and individual liberties. Some argue that these shutdowns violate constitutional rights, while others defend them as necessary emergency measures. The pandemic has also brought attention to the role of state legislatures in defining and limiting emergency powers, with calls for clearer distinctions between legislative and executive functions to prevent potential abuses of power. Additionally, the closure of private businesses on federal lands during government shutdowns has led to legal challenges and concerns about transparency and consistency in decision-making. These discussions highlight the complex balance between public health, economic impacts, and individual freedoms in a crisis.
| Characteristics | Values |
|---|---|
| Reason | To stop the spread of COVID-19 |
| Action | Shutting down restaurants, bars, gyms, schools, sit-down dining, museums, movie theaters, and banning gatherings of more than 50 people |
| Consequence | Loss of liberty and violation of constitutional rights |
| Constitutional Dichotomy | Between legislative and executive functions |
| Emergency Powers | Broad emergency powers granted to governors |
| Oversight | Constant oversight and periodic review of emergency powers |
| Separation of Powers | Violation of separation of powers principles |
| Due Process | Violation of due process |
| Public Opinion | 64% believe governments should cover losses of shut-down businesses |
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What You'll Learn
Separation of powers
The concept of separation of powers is derived from the text and structure of the US Constitution, which divides the government's powers among three branches: the legislative, executive, and judicial. This principle aims to preserve individual liberty by preventing the concentration of power in a single entity, which could lead to arbitrary and oppressive government actions.
The legislative power is vested in Congress, enabling it to pass laws and conduct oversight. The executive power is held by the President, who is responsible for executing the laws and administering the government, including appointing and removing executive officers. The judicial power rests with the Supreme Court and lower federal courts, tasked with interpreting the laws and resolving disputes.
The separation of powers often leads to political disputes and legal challenges, especially when one branch is perceived to overreach its authority. For instance, during President Donald Trump's administration, there were concerns about executive overreach, with legal experts questioning the constitutionality of some of his actions, such as attempting to dismantle independent agencies and offering federal employee buyouts.
In the context of shutting down private businesses, the interplay between the executive and legislative branches comes into focus. While the President has the power to execute laws and ensure public safety, the legislative branch, through its law-making power, sets the boundaries within which the executive branch operates. In the case of closing businesses, the governor or president must act within the scope of their authority, which may include issuing rules and regulations to address public safety concerns, as seen in the Colorado Disaster Emergency Act (CDEA) during the COVID-19 pandemic. However, their actions must not be arbitrary or violate constitutional requirements, as highlighted in Ritchie v. Polis.
Furthermore, the legislative branch, through its law-making power, can establish and dismantle government agencies, as seen in the case of USAID, where legal experts asserted that President Trump lacked the constitutional authority to unilaterally shut down the agency without congressional approval. This example demonstrates the checks and balances inherent in the separation of powers, where the legislative branch can curb potential executive overreach, ensuring that the President's actions are aligned with the laws enacted by Congress.
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Due process
In the United States, the Constitution is the supreme law, and no private company's policy can override it. However, the Constitution primarily governs the relationship between the government and individuals, not private parties. The State Action Doctrine limits the application of constitutional rights to situations involving government action. Hence, the Constitution generally does not apply to private companies unless they are acting on behalf of the government or performing a public function.
In the context of a state of emergency, a governor may suspend any state statute, rule, or regulation. However, they do not have the authority to suspend the Constitution. Any rights contained in the Constitution remain in force, and the government cannot seize or confiscate firearms or ammunition unless it is related to an arrest or criminal investigation.
If individuals feel that their constitutional rights have been violated by a governor's orders during a state of emergency, they can seek legal counsel to examine their specific situation. While the Constitution takes precedence over private company policies, its application to private companies is limited by the State Action Doctrine. There may be exceptions and additional protections provided by federal and state laws in specific circumstances.
It is important to note that the legality of shutting down private businesses during a state of emergency, such as the COVID-19 pandemic, may vary based on the specific laws and circumstances of each jurisdiction. The sources provided discuss the situation in California, where Governor Newsom issued executive orders and shelter-in-place directives. Some individuals questioned the legality of these orders, believing they violated their constitutional rights.
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Loss of liberty
The COVID-19 pandemic has created a constitutional crisis for governments, with leaders relying on emergency powers to issue orders restricting business activity, limiting mobility, and enforcing self-quarantines. These actions have resulted in a loss of liberty for private citizens and businesses, with some experts arguing that these restrictions amount to a violation of constitutional rights.
In the context of the pandemic, the application of emergency powers has stretched the limits of "temporary" measures, with governors continuing to exercise broad authority to enforce stay-at-home orders, shut down "nonessential" businesses, and limit civil liberties. The arbitrary nature of these shutdowns, with essential and nonessential businesses being classified without standardized risk parameters, has further contributed to the loss of liberty. For example, liquor stores may be deemed essential and allowed to remain open, while clothing stores are forced to close.
The separation of powers principles has been challenged, as governors have been able to define violations, establish penalties, and pursue those who do not comply without sufficient input from legislatures. This has led to concerns about the infringement of constitutional rights, with some citizens and legislators challenging the validity of these orders.
To address these concerns, state legislatures should reassess and clearly define the emergency powers granted to governors during a pandemic. These powers should be limited, subject to oversight, and periodically reviewed. Any restrictions imposed should be based on standardized risk parameters rather than arbitrary classifications of essential and nonessential businesses. By taking these steps, legislators can help to protect citizens' liberties and constitutional rights while still allowing governors the necessary authority to respond to emergency situations.
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Inconsistent application
The COVID-19 pandemic has created a constitutional crisis for leaders in Washington, with state and local governments enforcing shutdowns of private businesses to curb the spread of the virus. These shutdowns have resulted in job losses, threatened businesses with insolvency, and disrupted core civic activities. While the intention is to ensure public safety, some experts argue that these restrictions on private businesses violate constitutional rights and amount to a loss of liberty.
The inconsistent application of shutdown orders has further exacerbated the situation. Shutdowns based on arbitrary classifications of "`essential`" and "non-essential" businesses have led to liquor stores and marijuana dispensaries remaining open, while shoe and clothing stores are forced to close. This inconsistency is not limited to the current pandemic but has also occurred during previous government shutdowns. For instance, during the 2013 government shutdown, the Obama administration was criticised for arbitrarily restricting access to privately operated facilities within forests and wildlife refuges, hurting small businesses that relied on these spaces.
The Forest Service's response to Freedom of Information Act (FOIA) requests regarding the closures of private businesses during the 2013 shutdown further highlights the inconsistent application of shutdown orders. Despite being legally required to respond within 20 working days, the National Park Service and the Department of the Interior failed to produce any documents. Meanwhile, the Forest Service's eventual response, which only included communications after the shutdown ended, suggests an attempt to withhold information.
The lack of transparency and inconsistent application of shutdown orders have led to challenges from private citizens, state legislators, and members of Congress. They argue that these orders violate separation of powers principles and due process, with some calling for clearer definitions of emergency powers and quarantine laws. The pandemic has stretched the limits of temporary emergency powers, and state legislatures must now carefully review and possibly revise their statutory grants of these powers to ensure they are clearly defined, limited in scope, and subject to constant oversight.
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Financial implications
The financial implications of shutting down private businesses are significant and far-reaching, affecting businesses, individuals, and government entities alike.
For businesses, a forced shutdown can result in a complete or partial loss of income, threatening their very existence. This was evident during the COVID-19 pandemic, where government-mandated closures of "non-essential" businesses led to an estimated loss of over thirty million jobs and pushed countless companies towards insolvency.
Individuals also suffer financially, as employees of shuttered businesses may face layoffs, reduced income, or difficulty finding alternative employment, particularly in industries with specialized skill sets. The financial burden extends beyond immediate job loss, as demonstrated by the closure of Saint Xavier University in Gilbert, which left students with substantial student loan debt.
The financial implications of business shutdowns also impact government finances. While governments may save money by closing businesses owned or subsidized by the state, they often face increased costs in other areas. For example, the closure of private concessions in national parks during the 2013 government shutdown resulted in lost revenue for the government and caused "undue economic hardship" on local operators. Similarly, the City of Peoria, Arizona, gave away $2.6 million in taxpayer money to two private businesses, a decision that drew criticism for its potential unconstitutionality and misuse of public funds.
The financial fallout from shutting down private businesses can also lead to broader economic consequences. Reduced economic activity can result in decreased tax revenues for governments, impacting their ability to provide essential services and potentially leading to budget deficits. Furthermore, the disruption to supply chains and markets can have a ripple effect on other industries and sectors, exacerbating the financial strain on a wider scale.
Ultimately, the financial implications of shutting down private businesses are complex and far-reaching, impacting various stakeholders and contributing to economic instability. While such actions may be necessary in certain circumstances, careful consideration of the potential financial fallout is crucial for policymakers and legislators.
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Frequently asked questions
It depends on the situation and the laws of the country or state. In the case of the COVID-19 pandemic, state and local governments relied on emergency powers to shut down businesses to stop the spread of the virus. Some experts argue that these restrictions amount to a loss of liberty and a violation of constitutional rights.
During the COVID-19 pandemic, private businesses such as restaurants, bars, gyms, and movie theaters were shut down by state and local governments.
Some people argue that shutting down private businesses violates the principles of separation of powers and due process. It also infringes upon individual liberties and can cause economic collapse.
Yes, but it depends on the situation and the laws of the country or state. In the case of Peoria, Arizona, the city gave $2.6 million in taxpayer money to two private businesses, Huntington University and Arrowhead Properties LLC, to improve the local economy. However, this was considered unconstitutional by the Goldwater Institute as the state Constitution forbids the government from giving money to private companies.
Yes, private businesses can take legal action against the government if they believe their rights have been violated. For example, during a government shutdown in 2013, the Competitive Enterprise Institute submitted FOIA requests regarding the closure of private businesses but did not receive a response within the legal deadline.
