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Legality of virus shutdowns debated

While protesters across the country defy stay-at-home orders to defend their freedoms at anti-quarantine rallies, constitutional law professors say the cases they are trying to bring against governors probably wouldn’t hold up in court.

Protesters in the state capitals of Maine and Pennsylvania congregated this past Monday, demanding that governors end the stay-at-home orders aimed at lessening the spread of COVID-19. The protests followed the lead of similar rallies in California, Colorado, Kentucky, Maryland, Michigan, Minnesota, North Carolina and Virginia.

Groups organizing the rallies have called for the governors’ restrictions to end on May 1, but many governors are extending the stay-at-home orders because they say the measures are working to flatten the curve and lessen the spread of the coronavirus. Last week, Maine Gov. Janet Mills signed a proclamation that extended Maine’s state of emergency through May 15. On Friday, Michigan Governor Gretchen Whitmer said her order, which was set to expire on May 1, will be extended until May 15, and that everyone entering a store must now wear a mask.

Protesters weigh in

Those organizing and attending the rallies, many of whom were openly carrying firearms, say they are within their rights to peacefully assemble, and they believe the governors are abusing their power and causing economic devastation by requiring businesses to remain closed.

David Milstein of Dimondale, a suburb of Lansing, Mich., attended the “Operation Gridlock” protest in downtown Lansing on April 15. The original plan was for everyone to stay in their cars, he said, but many got out and congregated on the Capitol lawn and the surrounding area.

Milstein, however, stayed in his vehicle, as did thousands of others idling to block traffic throughout the downtown area. Milstein said he understands the need to quarantine the sick and vulnerable, but requiring businesses to close and healthy people to stay home is taking the executive orders too far.

“It was peaceful,” Milstein said of the Lansing rally, calling it the “largest protest I’ve seen since I’ve been in Lansing.”

While he was there to have his voice heard, Millstein expressed concern with the protestors who left their vehicles.

“I didn’t agree with people getting out of their cars,” Milstein said. “It was supposed to be ‘stay in your car’ only. And that’s what I did.”

His main concern is the economy — especially small businesses and employees who are currently out of work.

He said low-income manual laborers are already feeling the brunt of the shutdown.

If it continues, he said, “It’s going to be deadly to low-income people.”

The Harrisburg protest was organized in part by Pennsylvanians Against Excessive Quarantine, a Facebook group that was started on April 14 and, as of Thursday afternoon, had more than 72,000 members. Other groups organizing the rally were ReOpenPA and End the Lockdown PA.

The PAEQ Facebook page features a link that redirects you to the Pennsylvania Firearms Association website. On that site is a call to end Gov. Tom Wolf’s shutdown by passing a resolution drafted by Republican Senator Doug Mastriano, who rallied the crowd at the protest.

He represents the 33rd District in south central Pennsylvania.

In a phone interview Thursday, Mastriano, who spent 30 years serving in the Army, said “the mood was really good” at the rally, adding that he estimated about 3,000 people were there.

“People were exercising their rights,” Mastriano said. “You know, just because the governor issues an emergency order, it doesn’t suspend people’s personal rights. They’re supposed to be God-given rights, as delineated in the Constitution. And so, it was refreshing to see that.”

Last week, Pennsylvania Gov. Tom Wolf extended the state’s stay-at-home order until May 8, and throughout the state, all shoppers are required to wear masks when they enter a store.

“It’s a dangerous thing here when human rights feel like they’re being trampled on with so many restrictions on us,” Mastriano continued. “My solution is Senate Bill 1103,” he said. “I believe the governor’s orders were too haphazard and too draconian.”

Using guidelines from the CDC and OSHA, Mastriano wrote SB 1103 to establish strict protocol that must be followed if businesses are allowed to reopen. It also includes what he calls “The Employee Bill of Rights,” which states that if a worker is ill and cannot work, he or she will not be punished for staying home.

Are shutdowns legal?

Governors have declared state emergencies, and they are acting within their rights, according to the U.S. Constitution, law professors said this week. Their decisions to require business closures, to shut down sections of stores that carry nonessential items, to not allow for congregating or travel within the state, and even to limit things like using motorized boats, are at their discretion during the 28-day emergency period, a Western Michigan University Cooley Law School professor said.

Michael McDaniel is campus dean and a tenured professor in constitutional law at WMU’s Cooley Law School Lansing campus. When asked if anything in Whitmer’s order would infringe on Constitutional rights, he said no.

“It’s very, very difficult to make a case here,” he said.

A law, often called the First Civil Rights Act, was passed in 1875 during the Grant administration, McDaniel said.

“It specifically gave individuals a right to sue states for violation of their Constitutional rights,” McDaniel explained.

That’s what some people are doing now, at least in Michigan. But McDaniel doesn’t expect them to win their lawsuits against the governor because the law gives her and any state governor broad power whenever a state of emergency is declared.

He said one of the lawsuits he was aware of addressed the right of association with other people.

“What a lot of people are talking about is ‘I have this right to go out and sort of have a party with my neighbors.’ And to a large extent, you do. But, there is also the right of the states to protect the safety and welfare of the people,” McDaniel said. “Speaking broadly, this is the primary responsibility of state government.”

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