In times of crisis, it’s natural for people to want answers and solutions that will bring peace of mind, safety, and certainty. In these times, government can serve an important leadership role, but it must take care not to restrict or erode our freedoms in the process.
States and local communities should be trusted and empowered to respond in difficult times since they are closest to the people being affected. In some cases, government action can remove barriers that impede local and individual opportunities to respond to communities’ needs. We saw this in many states that used executive and legislative action to expand healthcare supply and access by removing telemedicine, scope-of-practice, and certificate-of-need regulations.
While government can use certain powers to unleash community solutions, it can also use power to curtail them—to invest government with more control and oversight in the name of safety and protection. Responding to a crisis or a local need requires states to strike a balance between government action that empowers solutions and government action that would undermine Americans’ rights and freedoms.
With their years of reliable policy research and analysis, state think tanks in the 50-state Network are uniquely positioned to help state and local governments navigate this balance. As states respond to the coronavirus pandemic and economic recovery, state think tanks are serving as resources to help their states identify reforms and processes that will enable government leaders to implement solutions without compromising Americans’ freedoms.
On their podcast, “Liberty First,” the Alabama Policy Institute pointed out that the powers related to a quarantine in an emergency lie primarily with the legislative branch, not the executive. API called on the Legislature to retake its rightful power to drive the state’s emergency response. A few days later, the Alabama Legislature introduced a bill that reduces the number of days the governor can call an emergency from 60 days to 14, after which the Legislature would have to approve of an extension. This reform puts more power back in the hands of the people, through their elected representatives.
Independence Institute reviewed examples of unconstitutional government responses to the coronavirus pandemic and pointed out how some state and local governments are acting as if the Constitution doesn’t exist. Independence stressed that our constitutional rights are not luxuries to be thrown away in times of crisis.
The Caesar Rodney Institute argued lost freedom might be the biggest long-term consequence from the government response to the coronavirus. CRI encouraged people to think about how many Americans have died to protect our freedom. That freedom is being diminished with these shutdown orders across the states. CRI noted that while it’s acceptable for the government to make recommendations to avoid crowds, it’s a violation of the right to assemble to require restaurants to close and force people to stay in their homes. While we should be concerned with saving lives in the long run, CRI advised Delaware residents and policymakers to think about the long run consequences to freedom and liberty.
Preventing and highlighting government overreach during the coronavirus has been a priority for the Grassroot Institute of Hawaii. Grassroot sponsored a webinar, “Safety vs. Liberty,” that emphasized our constitutional rights are not suspended during an emergency. The big danger is when intrusive measures on personal liberty are adopted under the guise of an emergency. Grassroot also pointed out how people might grow used to government infringements, even after the crisis has passed. Through media placements, webinars, and other outreach, Grassroot is highlighting the importance of respecting Hawaiians constitutional liberties during crises like the coronavirus.
After the Idaho Governor threatened the licenses of businesses that open before he’s granted them permission, the Foundation urged the Legislature to reconvene for a special legislative session. Doing so would ensure lawmakers make decisions that are informed by the constituents of the state’s elected representatives.
The Kansas Policy Institute is using its legal arm, the Kansas Justice Institute, to protect Kansans rights and liberties during the coronavirus. KJI raised concerns over a GPS program to track residents’ locations through their phones, fought a county order that cancelled a car parade, and sent a letter to Kansas county health departments, noting the coronavirus does not justify a local health order that violates the Constitution.
After the governor issued an executive order that temporarily prohibited mass gatherings of more than 10 people, the KJI sent a letter to the governor, arguing the order is unconstitutional. The Legislative Coordinating Council overturned that order before it was enforced.
Additionally, KJI filed a lawsuit on behalf of two Linn County residents whose rights were violated by a recent emergency order requiring businesses to keep a record of who visits their establishments and when. Shortly after the lawsuit was filed, the county issued a new order removing that requirement.
Like most states, Kentucky ordered all “nonessential” businesses to close under its shutdown order. The Bluegrass Institute noticed that the Kentucky Governor was not abiding by the same protocol that other Kentucky businesses have been forced to follow. Bluegrass filed an open records request that revealed the governor and his family were still being served by several employees working in the governor’s Mansion, including four housekeepers, two chefs, two maintenance workers and a butler. Pursuing this case and sharing the findings is another example of Bluegrass’ work to hold the state government accountable.
The Pegasus Institute released a report that examines state statutes that govern declarations of emergency. Pegasus observed: “Emergency powers are ‘the exception to the foundation of liberal constitutionalism: The limited sovereignty of the state, which protects individuals from tyranny.’ Vesting too much power in a single branch of government or individual throws off the delicate balance between the three branches of government, and this balance between the separate powers ‘is not merely a matter of convenience or of governmental mechanism. Its object is basic and vital.'”
Pegasus testified before the Kentucky Interim Joint Committee on the Judiciary about this report.
The Pelican Institute hosted CNN political analyst Sarah Isgur on a Pelicast episode to discuss whether state and local governments’ emergency responses to the coronavirus are constitutional. Pelican highlighted how these restrictions are in conflict with our constitutional rights. Throughout the crisis, Pelican offered guidance on the appropriate government response to COVID-19. Pelican’s CEO Daniel Erspamer urged the governor to treat Louisiana’s worsening jobs and economic crisis with the same urgency as the ongoing coronavirus health crisis.
How can the government do this? The Maine Policy Institute explored that question on a webinar on coronavirus emergency powers. Experts discussed whether these sweeping shutdown orders are constitutional. MPI held this event to educate Maine residents about their rights during this crisis.
Michigan’s lockdown orders have been among the most restrictive in the country. The Mackinac Center is using its litigation center to fight for the rights of Michigan residents. On May 12, 2020, the Mackinac Center Legal Foundation filed a lawsuit on behalf of three medical practices that are unable to provide necessary care and a patient who is unable to schedule an important surgery due to the governor’s executive orders. A week later, the Michigan Governor lifted the ban on nonessential medical procedures.
In May, the Michigan Governor allowed businesses to reopen only if they adhere to “strict workplace safety measures.” Any businesses that do not follow this pace for re-opening are subject to a three-year felony and a fine of up to $70,000 per occurrence. On May 22, Mackinac filed a lawsuit on behalf of Associated Builders and Contractors of Michigan and a private landscaping company. On June 8, the Circuit Court ruled these penalties are invalid.
The King James Bible Baptist Church in Greenville, Mississippi were met with the police department and threatened with fines when the church tried to hold a drive-in church service. The Mississippi Justice Institute, the legal arm of the Mississippi Center for Public Policy, filed a lawsuit challenging the Greenville mayor’s executive order that banned drive-in church services. Thanks to MJI, the city revised their policy and allowed churches to host drive-in services.
North Carolina’s constitution requires the governor to consider the will of the Council of State, a group of senior executive offices, including the attorney general, treasurer, and secretary of labor. The framers of the state constitution included this provision to create a dispersed executive branch. Civitas Institute criticized the governor for disregarding the will of the Council of State in his executive order that closed restaurants and bars and brought the economy to a grinding halt. Civitas noted that North Carolinians deserve better than unilateral action by the governor and his political advisors. They are entitled to a unified front from elected officials.
The John Locke Foundation also condemned the governor for not including the Council of State in the governing process during the crisis. Doing so, according to John Locke, was an abuse of power and due process. Because the Council of State is made up of ten independently elected officials, it’s more representative of the interests of the people of North Carolina than the office of the governor. That representative decision-making is needed to win the public’s confidence. The Foundation recommended the North Carolina Legislature amend the Emergency Management Act to limit the governor’s emergency powers and prevent the governor from enacting extreme emergency measures without the Council of State’s buy-in.
The Rhode Island Center for Freedom & Prosperity released a paper that finds the governor’s emergency powers are not unlimited and unchecked. The Center noted the General Assembly has the absolute authority to end a declared state of emergency, especially when the governor may not be acting with “restraint and moderation and with strict regard to the rights of the people.”
To provide a voice to the many Rhode Islanders angered by the governor’s unjustified summer lockdown, the Center launched the #WeWantOurSummerBack campaign. The initiative encourages citizens to contact their representative and ask them to use their legislative power to end the governor’s prolonged state of emergency.
Libertas Institute noted it’s important to protect public health, but not at the expense of individual liberties and due process. In late April, the Utah Legislature introduced a bill that
that would restrict local governments in issuing shutdown orders. Libertas commented on the legislation and offered suggestions on how the bill can be improved.
Sutherland Instituteis informing policymakers and Utah citizens on how the coronavirus will impact religious freedom. Sutherland considered whether the government can order churches to close without violating the First Amendment. Since limiting public gatherings have been generally applied to religious and nonreligous organizations alike, it is likely constitutional. But the government could always move to apply them in ways that violate constitutional rights.
After the Washington governor extended his stay-at-home emergency order, the Washington Policy Center questioned whether just one person should have that much unchecked power to indefinitely impose emergency restrictions. WPC encouraged the state legislature to consider if there should be an additional check required on the governor if he extends emergency proclamations beyond the initial 30 days.
After the Wisconsin Governor extended his shelter-in-place order, known as “Safer at Home,” the MacIver Institute asked Wisconsinites to consider the science and the facts before agreeing to these further restrictions. MacIver highlighted the damage the coronavirus response has inflicted on Wisconsin families and small businesses and reminded the people of Wisconsin that they grant the governor the authority under which he operates, not the other way around.
Throughout the crisis, the Wisconsin Institute for Law & Liberty has offered legal analysis on Wisconsin’s emergency powers and their limits. WILL has also provided litigation support when the government oversteps and violates the rights of Wisconsin residents. In April, WILL sent a letter to the governor, asking him to clarify, correct, and restrain local government officials who were using the stay-at-home order to ban drive-up religious services.
WILL considered the tough legal questions the coronavirus response raises. According to WILL, the Wisconsin Governor’s shutdown order is in unavoidable tension with our Constitution and with the very foundation of the American project. Following the Wisconsin Legislature’s challenge of the Wisconsin Governor’s extension of the “Safer at Home” order, WILL filed an amicus brief in support of the action on behalf of Wisconsin small businesses.
After the Wisconsin Supreme Court struck down the extension of the order, WILL noted the decision ensures that Wisconsin’s response to COVID-19 must involve both the executive and the legislative branch.