For the past month, most states have imposed lockdown orders in an effort to control the coronavirus. They are now slowly beginning to reopen, one sector at a time.
It is hard to say what the motivation was as some think that it is too soon to reopen. Did we flatten the curve? Is a promising vaccine just around the corner? Or was the government worried about the catastrophic economic impact of a prolonged closure? Or were they worried about civil unrest?
Some are predicting a second wave of outbreaks as a result. Assuming that is the case, it is likely that governments will impose another lockdown. Will it work? Will the public accept it? Let’s look at it from a legal, practical, economic, and political perspective. I will first look at whether these lockdown orders are permissible under the U.S. constitution.
I am not a health professional so I won’t argue who is right or wrong about the coronavirus. Nor will I get into specifics such as whether hydroxychloroquine is an effective treatment for COVID-19. My LLM in Taxation only allows me to say that if you purchase hydroxychloroquine to treat COVID-19, then the purchase is tax deductible if your itemized deductions exceed your standard deduction during the calendar year.
Instead, I will only rely on general, universally accepted facts about the coronavirus. First, the virus can generally be transmitted through close contact with other people. Second, many infected people do not show symptoms of the virus but can still infect others. Third, the best treatment for most infected people is to stay home and take care of themselves. Lastly, most of the fatalities come from the elderly or those with compromised immune systems.
For the most part, lockdown orders placing restrictions on businesses, schools, entertainment activities, and social gatherings have been found to be constitutional. The Michigan Court of Claims held that the governor’s stay-at-home order does not violate federal procedural or substantive due process. The opinion noted that a person’s liberties are subject to society’s interests. And one of these interests includes being protected from a highly communicable disease.
However, courts have held that lockdown orders can violate certain provisions of the Constitution. For example, orders that forbid gatherings for religious services can be unconstitutional infringements to freedom of religion. For example, a Kentucky district court struck down a ban on drive-in church services. A Kansas court held that churches must be allowed to conduct services so long as they implement measures to prevent the spread of COVID-19. The reasoning was that since other essential activities are permissible so long as certain health guidelines were followed, religious gatherings should also be allowed with similar health guidelines.
Also, one Kentucky court has held that executive orders limiting travel outside the state is a violation of the Constitution’s right to interstate travel. The court stated that it would be inconsistent to disallow visiting friends and family members just because they happen to live in another state. Also, the ban would create massive traffic jams for the many cars that pass through the state.
Courts have mixed reactions concerning whether lockdown orders can apply to abortion clinics. A federal judge blocked the Tennessee Governor Bill Lee’s executive order to limit surgical abortions during the COVIC-19 pandemic. But the Fifth Circuit restored Texas’s ban on most abortions citing the pandemic.
From these decisions, it appears that courts will uphold a state’s lockdown order unless it violates another section of the Constitution or infringes upon a fundamental right. The Michigan court stated that it is not the courts’ job to second-guess the legislature’s efforts to fight the pandemic.
The contradicting abortion decisions are not surprising. The issue is a controversial one as conservatives are trying to find a way to get a case before the U.S. Supreme Court in an attempt to overturn Roe v. Wade.
The cases show that courts are sympathetic to the right to practice the religion of their choice. But the rulings suggest that they are unlikely to allow — at least for the time being — traditional religious gatherings where people congregate closely. This might change as we learn more about COVID-19. If future outbreaks are found to have been originated from religious gatherings even with protective measures taken, expect governors to take more restrictive action and courts are likely to be less sympathetic.
Finally, the lethality of a disease will also play a role on deciding the constitutionality of a lockdown order. What if there was an Ebola outbreak? There is no cure for the Ebola virus, and the fatality rate is higher (and more gruesome) than COVID-19. It’s safe to say that courts will look at lockdown orders more favorably if the disease is more lethal.
Intuitively, it would appear that lockdown orders would not have much trouble passing constitutional muster. But the courts have held that the Constitution will not allow absolutes. A person does not have an absolute right to liberty. At the same time, the government does not have an absolute right to lockdown whoever it chooses. If there is a second outbreak of COVID-19, state and local governments should not be afraid to do whatever they think is necessary to control it. But they should take steps to ensure that religious services and other fundamental rights are protected by not unfairly restricting them.
Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.
Jordan Rothman is a partner of 
