CONSTITUTIONAL CRISIS • Safe, but how Secure?

As we enter our 6th week of quarantine in the battle against COVID-19 our nation finds itself in the midst of a national emergency that is very akin to a State of War - and better yet, it’s a two-tiered war. 

The first tier involves the epidemiology of the virus containing questions of its contagiousness and deadliness on which there are significant disagreements and conflicting data that evolves daily; and the second equally important tier involves the best way to respond to this virus, which to date has involved massive lockdowns that have crippled our economy, caused more than 22 million Americans to file for unemployment, and witnessed the unprecedented expansion and control of government in a manner that shakes the very foundation of our constitutionally protected freedoms and rights as United States citizens.

As we look at re-opening society, a pivotal focus needs to be placed specifically upon the question of how much power can a government seize without questioning or second-guessing their decisions. And it is within this context that two respected civil rights attorneys are in the process of challenging Governor Gretchen Whitmer’s recent Executive Orders mandating the closure of all ‘non-essential businesses’ that also restrict constitutionally protected rights of assembly and freedom of information.

Michigan attorney Robert Barnes is filing suits for clients across America against violations of the 1st, 2nd, 4th, and 5th Amendment rights guaranteeing all Americans freedom of assembly, protection against unreasonable searches & seizures, and protection to rights of life, liberty & property that have been suspended without due process.

Meanwhile, here in the Great Lakes Bay region, Hemlock attorney Philip Ellison has filed a  lawsuit, in the specialized Michigan Court of Claimson April 7, 2020, challenging Executive Order No. 2020-38 and the authority of Governor Whitmer to cause the rewriting and suspension of the important government "sunshine" law pertaining to requests made underThe Freedom of Information Act.

"Undoubtedly COVID-19 is a serious public health concern, but it does not give our government a blank check to do whatever they wish without answering to the public or the law," states Ellison. "The need for government oversight is at its highest in times of crisis and the resulting unprecedented use of government powers."

“Right now the focus should be on the question of how much power can a government seize without questioning or second-guessing their decisions,” states Barnes. “The virus is giving governments the ability to seize power in an unchecked way. The Hong Kong protests disappeared because of the virus; the Yellow Vest protests in France disappeared; and in the United States the Department of Justice is seeking approval for the indefinite detention of American citizens without conviction - they want the authority to extend the Quarantine power in an unprecedented manner.”

“Peter Hitchens - the brother of noted Vanity Fair writer Christopher Hitchens - said the minute all the governments of the world agree about something, you should immediately become skeptical,”  continues Barnes. “The way these quarantine lockdowns are going suggests a coordination between powerful individuals and institutions shutting down economies in a way that is unprecedented; even for periods spanning World War I and II where you still had functioning economies in parts of the globe.”

Checks, Balances, and the Role of the Judiciary

According to both Barnes & Ellison, this power of Executive Order  is one of the biggest loopholes that exist in the arena of Constitutional law, because judicial precedents have allowed the government to seize power in ways that violate civil liberties under the banner of protecting public health, while the courts have turned a blind eye to it.

“Constitutionally, government could not appropriate this much power through acts of terrorism,” states Barnes.  “They only got so far with that one during 9/11; but through pandemic - just the mere threat of it - government is now seizing power in unprecedented ways. We can’t go to church, can’t go to the theatre, can’t hang out with our children - anyone who doesn’t comply is either satirized or criticized or deemed a threat. Moreover, by refusing to counter the speculative nature of these shutdown orders, which are based upon probabilities and uncertainties in terms of who ‘might have’, or ‘might get’ the virus, a state of permanent Marshall Law is being way too discounted.”

“The most dangerous constitutional gaps in our country are in this context of virus. Could the same thing happen here in the United States that happened in China - where the government would enter into peoples’ homes and drag them away for quarantine? Meanwhile, we are dangerously sinking the economy.”

“Without any check on these executive quarantine restrictions, as it stands now you cannot get a petition to protest, which is within the scope of the 4th Amendment,” Barnes continues. “Where will it end?  As they relax social distancing will they use surveillance to track peoples’  locations or track their conduct - all in the name of protecting us against a virus that is justified upon the basis of questionable data?”

Indeed, one of the ironic twists concerning the recent protest in Lansing involves the fact that much of government is currently shut-down, which is a decidedly frightening realization that every American should be deeply concerned with.  Normally, a group that large would have to obtain a permit to stage a mass gathering of that nature and could actually be arrested for not having one and congregating as they did.  Permits and FOIA requests have been suspended until June 6th under the executive order, yet statutory constitutional law only allows the Governor to do that for 28 days.  

This is one of the many reasons the Governor’s latest Executive  Order is being challenged in the courts on very narrow and specific grounds by attorney Philip Ellison.  

“What is unique about our current situation is that these actions by our government have never been done before,” states Ellison. “Constitutionally, with past government encroachments pertaining to quarantine, governmental actions have  always focused upon a small group of people, such as criminals or victims, which were cordoned and separated those from the rest of society.”

“But with our current crisis, the government took the complete opposite approach and quarantined all the healthy people. And this is what is unprecedented. This is the key question courts need to answer: Can the government through limited and granted powers delegated by the people take such an all-encompassing systemic approach?”

“Indeed, with the courts shut down, how does society function?” he continues. “Prisoners sit in jail without access to a fair and speedy trial, businesses are arbitrarily told who can and cannot engage in commerce.  As a lawyer we are considered officers of the court, so I don’t think I’m subject to the Governor’s work order. She cannot order legislators not to legislate, and it’s my personal legal belief that officers of the court are bound by the oath of office they take. Having said this, I’m really disappointed the important role our judiciary has failed to fulfill during this crisis.  Our courts have functionally died for over four weeks now and are just starting to turn back on.”

“I view this as a failure with a large and pivotal branch of our government in that way,” continues Ellison. “The courts should be open and operating. I take an oath of office that puts the needs of my clients and the citizenry ahead of my own; and I’m not saying courts should be open constantly during this crisis, but they do have to be functioning.  Up to now things have been pretty peaceful; but now we are seeing things happening that necessitate the need for the courts to be open.”

“People are questioning the legitimacy of what the executive branches of government are capable of doing,” he concludes. “Plus, we are now seeing local health departments issuing public health orders; and in Saginaw the government just kind of shut down and blew away.”  

“Part of the reason we give away our individual rights for government to control and concede our personal freedoms and authority is because we expect government to be present in times of emergencies. We agree to give up our freedoms and pay taxes for the overall public good, so government should be there when times are tough. But in Saginaw, the city went beyond the orders of the governor and just basically folded up and went home.”

The Federalist View

Molly McCann has studied this arena of Constitutional Law thoroughly and offers her perspective in a recent article published by the Federalist.  

In McCann’s view, while the White House certainly has emergency authority to mandate all number of efforts to respond to crisis, and obviously can pressure local leaders, the coronavirus has highlighted the structural nature of the Constitution and that one of the saving graces in the insanity we are living through is that lockdowns are local.  Moreover, it highlights in a telling manner the disconnect between Health Professionals and the constitutional structure of our federal republic. 

Indeed, the incessant bleating of prominent health leaders over the lack of federal control in this crisis only underscores how little they understand or respect this country’s Constitution and the freedoms it seeks to protect. 

“Our country’s structure is pretty straightforward on paper, even if things get a little complicated once all the parts start moving in real time. When the states formed the Union, they ceded power to a federal government cautiously, carefully granting to Congress enumerated powers and creating checks and balances to keep the federal government from evolving into tyranny,” states McCann.

At least, that was the plan

“The states retained their historic “police power.” The police power is a state’s inherent authority to govern with a view toward its citizens’ health, safety, morals, and general welfare. Certainly, a state’s plenary powers are limited by the U.S. Constitution and state constitutions, but absent those restrictions, a state’s power is very broad.”

“Ordering lockdowns, then, is within the states’ authority, not that of the federal government. Bill Gates, Dr. Anthony Fauci, and anyone else advocating for a federally mandated lockdown either doesn’t understand the Constitution’s structure or doesn’t respect it.”

“If lockdowns have to be implemented jurisdiction by jurisdiction, or state by state, they can’t be imposed with the same uniformity and force, and there is the option for a state to dissent and chart its own path, as Florida’s Gov. DeSantis did for some time.”

This is essentially the “laboratory of the states” at work, as Justice Louis Brandeis wrote: “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” 

“DeSantis got a lot of grief for bucking the trend and attempting to find less restrictive means of securing his state short of house-arrest, but he had every right (perhaps even a constitutional duty) to do it. Concurrently, local control also means it is easier to correct overreach. It is easier for the people to hold state leaders accountable if and when emergency powers are abused.” 

This week we have seen multiple lawsuits crop up across the nation as citizens balk at draconian enforcement measures. In North Carolina a group of homeowners have filed suit against local leaders who are blocking their access to their vacation homes on the Outer Banks. Former Gov. Mike Huckabee is one of several homeowners in Florida suing because local authorities have told Huckabee and his neighbors they cannot use their own private beaches at their oceanfront properties.

In Greenville, Mississippi, police issued churchgoers $500 tickets for sitting in their cars at an outdoor service. The churchgoers are suing. In Kentucky, the governor announced law enforcement will record the license plates of anyone showing up to a mass gathering and then transmit that information to health officials, who will order a 14-day quarantine of those persons.

But perhaps even more important are the legal ramifications of malpractice suits that could come out of these lockdown and quarantine measures.   Quest Diagnosticsis furloughing employees, cutting pay, dismissing temporary workers, freezing hiring, cutting OT, according to Reuters news service.   Despite performing 40% of US COVID-19 tests, social distancing is destroying Quest's bread and butter: the other typical tests that Americans normally get.

Moreover, hospitals such as Covenant have moved to patients having doctor appointments through mobile computer applications - many of which, according to one doctor I spoke with - only work 50% of the time.  In many instances, the doctor can hear the patient, but not see the condition the patient is soliciting his opinion upon, and vice versa.

Citizens File Lawsuit Challenging Governor's COVID-19 Authority to Suspend FOIA
 

Of the many actions  being filed across the country, attorney Philip Ellison’s  lawsuit against the State of Michigan and Governor Gretchen Whitmer challenging the legal authority to issue Executive Order No. 2020-38 suspending Michigan's transparency and citizen-oversight law is perhaps the most narrowly structured and delineated, which means it should have the best chance of prevailing, given the specificity of the complaint and narrowness of the question.

The Freedom of Information Act(sometimes known as FOIA) requires governments to release government-held information and documents when requested by citizens, businesses, media outlets, and watchdog groups. This law is specifically designed to guarantee that the public has full access to the records of government bodies at all levels in Michigan.

The law itself explains its purpose and goal. 

It is the public policy of this state that all persons, except those persons incarcerated in state or local correctional facilities, are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees, consistent with this act. The people shall be informed so that they may fully participate in the democratic process.
MCL 15.231(2)

Over the past weeks, Michigan Governor Gretchen Whitmer has progressively exercised more and more legal powers to suspend many facets of everyday life in response to the COVID-19 pandemic. Notwithstanding, Michiganders have been very willing to do their part. The New York Times, for example, has highlighted how much Michiganders have heeded the Governor's call to stay home. 

In response, however, more government officials are issuing even more "orders" which have not been voted on by the Legislature or vetted through the normal legal processes, such as the City of Saginaw’s recent COVID-curfew.  Violations of these "orders" include the threat of jail and fines, and punishment against business licenses after the pandemic passes.

One bright example is the Michigan Department of Health and Human Services "Director's Order" which criminalized citizens' violations (even if unintentional) of "answers to questions" on a "Frequently Asked Questions" web page. Such odd government action has caused serious questions of the government's decision-making. Laws like the Freedom of Information Act are open and used to act as a check and balance on the government's exercise of such wide powers.

In the late hours of April 5, 2020, Governor Whitmer issued Executive Order No. 2020-38 changing the legal duty of all public bodies, from the local dogcatcher to the heads of our state's largest government agencies, to no longer need to provide information and documents on a timely and orderly basis, and instead suspended, to an unknown date, access rights at all levels of government and in all geographic areas. 

In other words, if a government simply invokes "COVID," it no longer needs to provide needed information, documents, and records to a requester. This can include medical and pandemic information, the official documents supporting particular decisions, and even basic access to records of government operations unaffected by COVID-19. The Governor's decision affects criminal cases, administrative challenges, and the needed transactions with governments.

The lawsuit has been filed in a specialized court in Lansing, Michigan which handle lawsuits against the State of Michigan and its officials. The case will be assigned to one of four Court of Appeals judges assigned to that court. 

Whitmer on the night of Sunday, April 5, signed executive order 2020-38, relaxing requirements for government workers responding in person to FOIA requests during the coronavirus outbreak. The order applies to records requests submitted by mail, fax, or in person. Public bodies are now allowed to defer parts of the responses that would require workers to report to government offices in-person, the order states. The order is effective immediately and is scheduled to be lifted June 4. 

The suit was officially filed Tuesday, April 7. Ellison is representing two clients in the suit, Eric Ostergren of Midland County and Jason Gillman Jr. of Ingham County, both of whom had planned to file FOIA requests and have filed some in the past.

“Both have concerns over the governor’s order and a number of other orders coming out at various levels,” Ellison said. “They want to get information and now they essentially can’t. The concern of any time a government acts beyond its normal, everyday powers and processes is that they’ll abuse that power,” Ellison continued. “Of course in times of crisis, we have to give officials more authority than they would normally have. But when you go too far, you’re actually hurting the citizenry rather than protecting them.”

“The Freedom of Information Act serves the most important tool for citizens, media, businesses, and others in accessing and securing needed information and documents from state and local governments. Many times, governments will not provide key document(s) unless and until a request is formally made under the Freedom of Information Act," Ellison wrote in the suit.

Whitmer’s executive order limiting the granting of FOIA requests is “drastic, unprecedented, and unauthorized by the text of the Michigan Constitution,” Ellison wrote.  “The Michigan Constitution says nothing about Michigan’s governor issuing emergency executive orders or who is in charge in an emergency to expressly suspend government transparency laws and obligations created by constitution and/or statutory law.”

The suit goes on to state the only provision dealing with “continuity of government in emergencies” refers to disasters occurring within Michigan caused by an enemy attack on the United States.

The suit also states that the state’s Emergency Management Actallows the governor to issue a state of disaster or a state of emergency that expires 28 days after its issuance unless it’s extended by the legislature upon the governor’s request. Whitmer issued a state-of-emergency declaration on March 10, meaning it would expire on April 7 without the legislature extending it. 

Whitmer’s April 5 order regarding FOIA requests that would last until June 4 “thusly exceeds the authority provided to Defendant Governor Gretchen Whitmer given the 28-day limit as provided by statute absent prior Legislature approval,” the suit states.

Whitmer on April 1 upgraded the state-of-emergency order to a state of disaster. The statute allows for the governor to provide reasonable orders, rules, and regulations he or she considers necessary for protecting life and property, or to bring the emergency situation within an affected area under control. The governor has also asked the legislature to pass a concurrent resolution to extend the state of emergency “by 70 days from the date of the resolution.”

“This lawsuit that I filed on behalf of my clients essentially states that the Governor exceeded her constitutionally limited and enumerated powers,” reflects Ellison. “As someone who treasures transparency and openness, you cannot take a statutorily limited power and then extend it beyond the window specified within the statute. Maybe she does have that power, but this is what we need to have the courts decide.”

“The second important component involved here is the distinction between what is essential and non-essential in society,” continues Ellison. “What I think is essential is when government exercises the broadest possible powers they perceive to possess, or believe they have - to my mind, this is precisely the time the public should have timely access to highly important information - not the lowest access.”

“One of the important and fundamental discussions we need to be having right now as a society is about the role of our governments in our day-to-day lives and where they should be and what they should be doing during a crisis.”

Calibrating the Cost of Freedom

As the situation deteriorates, many fear that the current efforts to control the virus will have dire consequences for individual freedoms long after the danger of COVID-19 has passed, according to Bloomberg's Ian Marlow - who notes "In desperate times like these, leaders on all levels are going to extraordinary lengths to do whatever possible to contain the virus."

Like the 9/11 terrorist attacks in the U.S., the coronavirus pandemic is a crisis of such magnitude that it threatens to change the world in which we live, with ramifications for how leaders govern. Governments are locking down cities with the help of the army, mapping population flows via smartphones and jailing or sequestering quarantine breakers using banks of CCTV and facial recognition cameras backed by artificial intelligence.

The restrictions are unprecedented in peacetime and made possible only by rapid advances in technology. And while citizens across the globe may be willing to sacrifice civil liberties temporarily, history shows that emergency powers can be hard to relinquish. -Bloomberg

"A primary concern is that if the public gives governments new surveillance powers to contain Covid-19, then governments will keep these powers after the public health crisis ends," says Adam Schwartz, a senior staff attorney for the Electronic Frontier Foundation based in San Francisco. "Nearly two decades after the 9/11 attacks, the U.S. government still uses many of the surveillance technologies it developed in the immediate wake."

There’s no U.S. federal authority “to force everybody everywhere to stay home,” says Elizabeth Goitein, co-director of the liberty and national security program at New York University School of Law’s Brennan Center for Justice. An attempt to do so would be “challenged judicially and instantly, in my view,” confirms James Hodge, professor at Arizona State University’s Sandra Day O’Connor College of Law. 

And fortunately, that is exactly what is now happening across the country.

“All the states are not going to do all the same things simultaneously,” Hodge says. And even if they did, “if you have a mandatory shutdown of everything, does the blow to the economy exacerbate the public health issues?” Goitein asks. 

“COVID-19 has revealed some major constitutional cracks on the role and power of government, which is a double-edged sword,” concludes Ellison. “On the one hand we are fortunate to not have a history of major heath epidemics of this magnitude, but the downside is that when we do have a crisis such as this that is perceived to be one of great magnitude, we don’t have the legal history or precedent to say what is and is not allowed.”

“The bottom line is that we need our court systems answering these questions; and the only way we can do that is if cases of this nature start to be brought in order for the courts to start answering these very important questions before them.”

Philosopher Bertrand Russell wrote:   “Neither a man nor a crowd nor a nation can be trusted to act humanely or to think sanely under the influence of great fear.” 

We would do well to heed this advice.