Letters to the editor


Over the past two months, the nation has

engaged in unprecedented shutdowns in an

effort to contain the outbreak of COVID-19.

After many weeks of economically crippling

restrictions and stay-at-home orders, citizens

are beginning to question the justification for

these measures and whether continued enforcement

unreasonably infringes on important

constitutional rights and liberties. These

concerns are becoming more acute now that

we have a better understanding of the impact

on our medical system and the economy

across the nation and here in Wyoming.

There is no question that states have broad

authority to exercise their police power to

implement emergency public health orders to

protect against an epidemic of disease. Wyoming

Gov. Mark Gordon used that authority,

as set forth by state statute, to restrict the size

of gatherings and close various facilities and

businesses, explaining that the restrictions are

necessary to protect those at high risk from

COVID-19 and to avoid exceeding the capacity

of the health-care system.

The legal framework for evaluating the

constitutionality of these measures is highly

deferential to the state. The Supreme Court

has ruled that when faced with an epidemic,

a state may implement emergency measures

that limit constitutional rights so long as they

have at least some “real or substantial relation”

to the public health emergency and are

not “beyond all question, a plain, palpable invasion

of rights secured by the fundamental

law.” Jacobson v. Commonwealth of Massachusetts,

197 U.S. 11, 31 (1905). In evaluating

these actions, the federal government and

the federal courts may consider whether the

measures are arbitrary or oppressive, but may

not “second guess” state and local leaders

who enact restrictions based upon the advice

of public health experts.

While the legal inquiry is deferential, the

power of the state is not unlimited. If the public

health authority is “exercised in particular

circumstances and in reference to particular

persons in such an arbitrary, unreasonable

manner,” or goes “so far beyond what was

reasonably required for the safety of the public,”

the courts may be compelled to “interfere

for the protection of such persons.” Jacobson,

197 U.S. at 28.

U.S. Attorney General William Barr has

recently issued a memorandum directing the

Department of Justice to monitor state orders

across the country to ensure they do not unduly

infringe on constitutional rights and civil

liberties of individual citizens, such as the free

exercise of religion and freedom of speech.

Consistent with that direction, the Department

has filed statements of interest in support of

private litigants in two cases, one in Mississippi

and the other in Virginia, that involve

potential infringement of First Amendment

religious free exercise rights. The state health

orders at issue in these cases appeared to subject

religious organizations to less favorable

treatment than similarly situated organizations,

implicating a heightened level of constitutional

scrutiny.

Although we are actively monitoring for

potential constitutional violations, including

here in Wyoming, the Department is being

cautious not to unduly interfere or secondguess

the judgment of the various states

when it comes to public health. We recognize

the legitimate role for the states in responding

to the challenges posed by COVID-19.

However, federal deference does not prevent

private citizens from expressing their views

or from pursuing individual legal actions for

redress, as they deem necessary.

Precisely where the line exists between

a valid exercise of emergency public health

authority and one that is arbitrary or unreasonably

infringes on individual rights is not

always clear. Context matters and courts

will determine these questions based on the

facts and circumstances of individual cases.

Without bright lines to guide us, we rely on

the wisdom and restraint of our elected leaders

to carefully evaluate and make decisions

based not just on the best available public

health guidance, but also the economic, social,

moral and constitutional implications of

their actions.

The current pandemic is truly an unprecedented

test of our ability to balance public

health with the need to preserve constitutional

rights and economic livelihood. These are difficult

decisions to make, and require our leaders

to confront hard truths about the limits of

our ability to reasonably mitigate COVID-19

risks while still functioning as a free and prosperous

society.

My hope is we continue to show signs of

improvement and are able to proceed through

the phases of re-opening proposed by Gov.

Mark Gordon. In the meantime, my office will

monitor the situation in coordination with our

state counterparts to ensure that rights under

the Constitution are not unduly infringed.

Here in Wyoming, we pride ourselves in

our rugged individualism and determination.

We face challenges with common sense and

a willingness to do what needs to be done.

Let us hope our response to this virus is no

exception.

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