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Tag: stay-at-home

The Dormant Commerce Clause and COVID-19 State-Ordered Business Closures

The Dormant Commerce Clause and COVID-19 State-Ordered Business Closures

Parties have begun filing lawsuits seeking to “reopen” their states. These lawsuits challenge business closures and stay-at-home orders mandated by state and local governments. The Supreme Court has acknowledged, in the due process context, “the authority of a State to enact quarantine laws and ‘health laws of every description.’” Beyond due process, however, at least one of these lawsuits has raised dormant commerce clause issues, contending that, by ordering businesses to close, the state is unconstitutionally interfering with Congress’ Article…

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HOAs and Residents with COVID-19

HOAs and Residents with COVID-19

The coronavirus quarantine has led many states to issue stay-at-home orders on the plausible theory that doing so will cause individuals to be isolated from others and less likely to catch or spread the virus. Yet for many people, “home” is not a place of complete isolation, but involves shared space where residents come into repeated contact with each other in order to wash clothes, step outside, or pick up an Instacart order. Condominium complexes, for example, entail sole ownership…

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Life Hangs in the Balance: Weighing Coronavirus Church Closings Against the RFRA

Life Hangs in the Balance: Weighing Coronavirus Church Closings Against the RFRA

On March 27, the Hillsborough County Emergency Policy Group unanimously issued an order restricting the gatherings of non-essential businesses and services. The Rev. Rodney Howard-Browne responded that he would only cancel church services for the Rapture and that pastors who canceled services were “pansies.” After holding church services on March 29, county authorities arrested Howard-Browne for unlawful assembly and violating the public health emergency order. While the Religious Freedom Restoration Act (RFRA) of 1993 applies only to the federal government,…

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COVID-19 Phobias About Health, Finances, Law, Leadership, and Loneliness

COVID-19 Phobias About Health, Finances, Law, Leadership, and Loneliness

COVID-19 is not just a medical and physical health pandemic; it has also led to interrelated phobias concerning health, finances, law, leadership, and loneliness. These interconnected phobias feed off each other and can alter a person’s decision-making, risk perception, and self-identity. They also create and increase anxious feelings in sufferers. Anxious people seek and take more advice, have impaired information processing and lower self-confidence, fail to differentiate between advisors with and without conflicts of interest, and fail to discern good…

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South Dakota’s COVID-19 Response is a Battleground for Tribal Sovereignty

South Dakota’s COVID-19 Response is a Battleground for Tribal Sovereignty

In a May 5 post Assistant Attorney General for the Navajo Nation Department of Justice Paul Spruhan argued that Indian tribes should have authority to restrict movement through their territories in order to stem the tide of the COVID-19 epidemic. Those very principles are now being put to the test in South Dakota, where Gov. Kristi Noem has demanded that Oglala Sioux tribal leaders remove the checkpoints set up to regulate traffic through the reservation. Gov. Noem has previously come…

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Essential but Excluded: Vending in the Time of Corona

Essential but Excluded: Vending in the Time of Corona

Immigrants, those with legal status and those without, individuals returning from incarceration, and individuals with time-consuming childcare and other family obligations often look to start microenterprises like street vending to provide for themselves and their families. However, many municipalities in the United States apply a penal approach to street vending, criminalizing it as a form of vagrancy. Even Los Angeles, a city known for its street vending culture, criminalized the practice outright until 2019. Other cities have permitted vendors to…

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Closed for Business – Open for Litigation?

Closed for Business – Open for Litigation?

Can a business-closure regulation of commercial property in a pandemic be a taking?  In the midst of a pandemic, it generally falls to government to enact laws and regulations in an effort to curtail the spread of disease. For example, the Supreme Court discusses compulsory vaccination in Jacobson v. Massachusetts and quarantines in Smith v. Turner.  In a liberty-oriented constitutional federalist democratic republic like America, this can be challenging–indeed, the volume of published opinions in this area of law show…

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Surveillance Intrusiveness in a Pandemic

Surveillance Intrusiveness in a Pandemic

Government surveillance capabilities have always been a matter of public concern, but the current pandemic makes the issue especially salient. We set out to discover what Americans think of government surveillance during this crisis. Americans have been inundated with media reports of novel forms of public health surveillance since the crisis began. Apple and Google just announced a partnership to create a smartphone contact-tracing application, which would use Bluetooth to trace a person’s movement and contacts. Apple is also using…

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Protests During the Pandemic

Protests During the Pandemic

As a general rule, the government is permitted to restrict activities, including protesting, during the COVID-19 pandemic. The government can regulate the time, place, and manner of speech in public forums with a content neutral restriction so long as the restriction is narrowly tailored to “serve a significant government interest” and “leave[s] open ample alternative channels for communication of the information.” A shelter-in-place order can constitutionally prevent public gatherings for a period of time (many of these orders are in…

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The Necessity of Firearm Stores During the COVID-19 Pandemic

The Necessity of Firearm Stores During the COVID-19 Pandemic

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Gun owners and would-be gun purchasers are arguing that state measures to prevent the spread of the novel coronavirus infringe on their Second Amendment rights. To the extent the premise is correct—the Second Amendment guarantees access to a firearm store—it’s not clear that their conclusion follows. In response to the COVID-19 pandemic, forty-five states have issued statewide stay at home orders. These orders are based upon guidance from the Center for Disease Control and other public health agencies that have…

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