The constitutionality of "stay-at-home" orders

[Glitch]

Again for those unfamiliar with the history of the United States and the Constitution along with knowing what a precedent is...

Under section 361 of the Public Health Service Act (42 U.S. Code § 264), the U.S. Secretary of Health and Human Services is authorized to take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states.

Under 42 Code of Federal Regulations parts 70 and 71, CDC is authorized to detain, medically examine, and release persons arriving into the United States and traveling between states who are suspected of carrying these communicable diseases.
States have police power functions to protect the health, safety, and welfare of persons within their borders. To control the spread of disease within their borders, states have laws to enforce the use of isolation and quarantine.

These laws can vary from state to state and can be specific or broad. In some states, local health authorities implement state law. In most states, breaking a quarantine order is a criminal misdemeanor.

Tribes also have police power authority to take actions that promote the health, safety, and welfare of their own tribal members. Tribal health authorities may enforce their own isolation and quarantine laws within tribal lands, if such laws exist.
Legal Authorities for Isolation and Quarantine
| Quarantine | CDC

The federal government has the constitutional authority to regulate international and interstate commerce, as well as total authority over immigration. What no government has is the authority to violate the Fifth and Fourteenth Amendments by denying every American their right to due process of law. No declaration of emergency gives any Mayor, Governor, or President the authority to willfully violate the rights of Americans.

As I have already pointed out, procedurally the States and federal government may only quarantine those who are actively contagious and will infect others imminently. And they must present evidence of both at a trial, at which the government bears the burden of proof. They may not enact or enforce laws that restrict the movement of Americans en masse without violating the Fourteenth Amendment.

 

[Glitch]

"Police power" is a term of art. It generally means the ability of a government to establish and enforce laws protecting the welfare, safety, and health of the public. This power derives from the 10th Amendment, as it is a power that was not delegated to the federal government. This is a well-established and universally accepted principle of U.S. federalism.

Now of course police power is not unlimited. And there is debate over how far states can go in exercising police power. But individual rights are not unlimited either. U.S. law is all about balancing competing rights and government interests. You won't find a single interpretation in U.S. law holding any right to be absolute.

While the Tenth Amendment does indeed secure all powers not granted to the federal government, or prohibited to the States by the US Constitution, to the States and/or the people, the Tenth Amendment does not give States the authority to violate the Fifth and Fourteenth Amendments. Due process is required by every level of government, regardless of whether there is a declared emergency or not.

According to the Fifth Amendment “[No person shall] ... be deprived of life, liberty, or property, without due process of law.” Furthermore, the Fourteenth Amendment says that “[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States without due process of law.” Since the Supreme Court in United States v. Wheeler, 254 U.S. 281 (1920) held that the right to travel without government restriction is one of those “privileges or immunities” of every American. In order to restrict the liberty of anyone both the States and the federal government must require procedural due process. That means a trial for every person they wish to restrict or confine.

 

[Lakryte]

While the Tenth Amendment does indeed secure all powers not granted to the federal government, or prohibited to the States by the US Constitution, to the States and/or the people, the Tenth Amendment does not give States the authority to violate the Fifth and Fourteenth Amendments. Due process is required by every level of government, regardless of whether there is a declared emergency or not.

According to the Fifth Amendment “[No person shall] ... be deprived of life, liberty, or property, without due process of law.” Furthermore, the Fourteenth Amendment says that “[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States without due process of law.” Since the Supreme Court in United States v. Wheeler, 254 U.S. 281 (1920) held that the right to travel without government restriction is one of those “privileges or immunities” of every American. In order to restrict the liberty of anyone both the States and the federal government must require procedural due process. That means a trial for every person they wish to restrict or confine.

You keep repeating the same talking point over and over again while ignoring my response. No rights are absolute.

And you also keep conflating the constitutionality of a law with procedural due process. I don't think you understand what procedural due process is. The government does not have to give every individual a hearing before deciding whether a law of general applicability can apply to them. Just think of almost any general public health or safety law. Do you receive a hearing before seatbelt laws apply to you? No. If someone gives you a ticket for speeding, can you say "sorry officer, that ticket doesn't apply to me because I never received a trial finding that I shouldn't be allowed to speed"? Of course not. That's absurd.

Procedural due process is not implicated in laws of general applicability. Stay at home orders simply don't raise procedural due process issues.

 

[Moonglow]

The federal government has the constitutional authority to regulate international and interstate commerce, as well as total authority over immigration. What no government has is the authority to violate the Fifth and Fourteenth Amendments by denying every American their right to due process of law. No declaration of emergency gives any Mayor, Governor, or President the authority to willfully violate the rights of Americans.

As I have already pointed out, procedurally the States and federal government may only quarantine those who are actively contagious and will infect others imminently. And they must present evidence of both at a trial, at which the government bears the burden of proof. They may not enact or enforce laws that restrict the movement of Americans en masse without violating the Fourteenth Amendment.

Sorry Old Bean but the Supreme Court doesn't agree with yous...Sorry you can't understand. Due process is the act of declaring a national health emergency..


Just like you don't have a right to spread your STD to another human..

 

[JoeyJoystick]

According to the Fifth Amendment “[No person shall] ... be deprived of life, liberty, or property, without due process of law.” Furthermore, the Fourteenth Amendment stays that “[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States without due process of law.”

Every Governor who has issued a “stay-at-home” order has violated both the Fifth and Fourteenth Amendments of the US Constitution. Yes, those Governors were abiding by the laws enacted by their respective State legislatures, but those laws are illegal.

The Supreme Court in United States v. Wheeler, 254 U.S. 281 (1920) held that the right to travel without government restriction is one of those “privileges or immunities” of every American. In order to restrict the liberty of anyone both the States and the federal government must require procedural due process. That means a trial for every person they wish to restrict or confine.

No government (local, State, or federal) has the lawful power to curtail natural rights by decree. That includes the illegal curfew ordinances declared by city Mayors. There are no provisions within the US Constitution that grants any government the power to restrict, suspend, or terminate the Bill of Rights.

The States and federal government may only quarantine those who are actively contagious and will infect others imminently. And they must present evidence of both at a trial, at which the government bears the burden of proof.

That means a trial is required before any quarantine, no matter the public danger, for every individual whose liberty they wish to restrict. It must also be a fair trial, not one driven by media-generated mass hysteria or government-generated fear. Anything less is a violation of due process and our constitutionally protected rights.

I must admit I kinda agree with you. But at the same time the government would impose a stay at home order to protect the people of the country it swore to represent and protect. It is this protection that will allow the government to win such a case I believe. Ultimately time will tell I guess.

However, this highlights an other issue of course. If the constitution states this, than I guess the constitution needs to be changed with some very careful wording. Because it can not be such that the government is going to be hindered protecting the people by an old outdated law that was not intended to cover the Covid-19 Time Era in the first place.

Joey

 

[Glitch]

I must admit I kinda agree with you. But at the same time the government would impose a stay at home order to protect the people of the country it swore to represent and protect. It is this protection that will allow the government to win such a case I believe. Ultimately time will tell I guess.

You are right, the government would win. However, they must first provide evidence and prove their case beyond a reasonable doubt in a court of law. That is what due process is all about. They have done so in the past ("Typhoid Mary" was forcibly quarantined by court order, for example).

However, this highlights an other issue of course. If the constitution states this, than I guess the constitution needs to be changed with some very careful wording. Because it can not be such that the government is going to be hindered protecting the people by an old outdated law that was not intended to cover the Covid-19 Time Era in the first place.

Joey

Due process of law is not some "outdated law" it is an individual right of every American. No less than freedom of religious belief or freedom of speech. Until the Fifth and Fourteenth Amendments are altered in accordance with Article V of the US Constitution, the government is required to uphold those individual rights.

The Supreme Court in Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905) held:

While a local regulation, even if based on the acknowledged police power of a State, must always yield in case of conflict with the exercise by the General Government of any power it possesses under the Constitution, the mode or manner of exercising its police power is wholly within the discretion of the State so long as the Constitution of the United States is not contravened, or any right granted or secured thereby is not infringed, or not exercised in such an arbitrary and oppressive manner as to justify the interference of the courts to prevent wrong and oppression.

 

[iguanaman]

According to the Fifth Amendment “[No person shall] ... be deprived of life, liberty, or property, without due process of law.” Furthermore, the Fourteenth Amendment stays that “[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States without due process of law.”

Every Governor who has issued a “stay-at-home” order has violated both the Fifth and Fourteenth Amendments of the US Constitution. Yes, those Governors were abiding by the laws enacted by their respective State legislatures, but those laws are illegal.

The Supreme Court in United States v. Wheeler, 254 U.S. 281 (1920) held that the right to travel without government restriction is one of those “privileges or immunities” of every American. In order to restrict the liberty of anyone both the States and the federal government must require procedural due process. That means a trial for every person they wish to restrict or confine.

No government (local, State, or federal) has the lawful power to curtail natural rights by decree. That includes the illegal curfew ordinances declared by city Mayors. There are no provisions within the US Constitution that grants any government the power to restrict, suspend, or terminate the Bill of Rights.

The States and federal government may only quarantine those who are actively contagious and will infect others imminently. And they must present evidence of both at a trial, at which the government bears the burden of proof.

That means a trial is required before any quarantine, no matter the public danger, for every individual whose liberty they wish to restrict. It must also be a fair trial, not one driven by media-generated mass hysteria or government-generated fear. Anything less is a violation of due process and our constitutionally protected rights.

The reason there are laws against drunk driving is that a intoxicated driver can deprive others of their right to life. Stay at home orders have the exact same reasoning behind them. You may not do something that endangers others lives and the State is determining that for you. The State need not prove that you actually caused any harm while driving intoxicated either, the act is enough. Your license will still be revoked. Put that in your pipe and smoke it.

 

[Glitch]

The reason there are laws against drunk driving is that a intoxicated driver can deprive others of their right to life.

We don't arrest everyone in the State when someone is busted driving under the influence. We arrest the offending individual and provide them with due process of law. In other words, evidence is presented against them in a court of law and the government must prove its case beyond a reasonable doubt. Something that government has denied its citizens during this pandemic.

Stay at home orders have the exact same reasoning behind them. You may not do something that endangers others lives and the State is determining that for you. The State need not prove that you actually caused any harm while driving intoxicated either, the act is enough. Your license will still be revoked. Put that in your pipe and smoke it.

If that were true, then government should have no problem presenting their evidence to the court proving their case beyond a reasonable doubt. Until they do that they are violating the Fifth and Fourteenth Amendments. Even someone who is arrested for DUI is entitled to that basic right.

 

[iguanaman]

We don't arrest everyone in the State when someone is busted driving under the influence. We arrest the offending individual and provide them with due process of law. In other words, evidence is presented against them in a court of law and the government must prove its case beyond a reasonable doubt. Something that government has denied its citizens during this pandemic.


If that were true, then government should have no problem presenting their evidence to the court proving their case beyond a reasonable doubt. Until they do that they are violating the Fifth and Fourteenth Amendments. Even someone who is arrested for DUI is entitled to that basic right.

If everyone in the State is drinking and driving then they all will be arrested. You are arguing that you need a court to adjudicate whether drinking and driving is illegal. That is not needed and a stay at home order is the same. You will get the same treatment as a drunk driver if you violate a stay at home order.

 

[Glitch]

If everyone in the State is drinking and driving then they all will be arrested. You are arguing that you need a court to adjudicate whether drinking and driving is illegal. That is not needed and a stay at home order is the same. You will get the same treatment as a drunk driver if you violate a stay at home order.

You are mistaken, I am arguing that the government must provide evidence in a court of law and prove their case beyond a reasonable doubt BEFORE they begin locking people up. You realize that you are arguing for a government that makes its citizens disappear without a trace, right? Like they do in those fascist leftist nations, like in China, Venezuela, Cuba, and other leftist sh*tholes. Due process of law is what separates the US from those fascist leftist nations.

No wonder you support absolute government power and seek to deny Americans their constitutionally protected rights. It is literally a leftist wet-dream.

 

[iguanaman]

You are mistaken, I am arguing that the government must provide evidence in a court of law and prove their case beyond a reasonable doubt BEFORE they begin locking people up. You realize that you are arguing for a government that makes its citizens disappear without a trace, right? Like they do in those fascist leftist nations, like in China, Venezuela, Cuba, and other leftist sh*tholes. Due process of law is what separates the US from those fascist leftist nations.

No wonder you support absolute government power and seek to deny Americans their constitutionally protected rights. It is literally a leftist wet-dream.

I am saying that in cases of deadly pandemics the national good may require temporary life saving measures that supersede some of our freedoms. You have expressed a desire for fascist type repression of our Constitutional right of free assembly to "save lives and property" so this sudden and irresponsible attack on a life saving lockdown for medical reasons makes no sense to me at all. I can only conclude that you have no moral compass at all.

 

[JoeyJoystick]

Due process of law is not some "outdated law" it is an individual right of every American. No less than freedom of religious belief or freedom of speech. Until the Fifth and Fourteenth Amendments are altered in accordance with Article V of the US Constitution, the government is required to uphold those individual rights.

Hi Glitch,

I hear what you're saying. It is a fundamental right that should in principal not be touched. But, as you pointed out, it is not the first time there have been struggles in this area. Typhoid Mary is indeed a good example. All I am saying that you do not want to have a situation like this; where you first have to go to court to isolate someone when they are ill. Or telling people to wear a mask. And for the sake of argument lets leave Covid-9 out for it for a second. It may the next time being something as contagious as Covid-19, but as lethal as Ebola. Than you do not have the time to go to court over this. And that is why I said that this should be covered in either law or constitution. And hence the reason I used the term 'some very careful wording', because I am (was) fully aware that making any amendments to such a basic right is obviously a difficult decision for many people.

Joey

 

[Glitch]

Hi Glitch,

I hear what you're saying. It is a fundamental right that should in principal not be touched. But, as you pointed out, it is not the first time there have been struggles in this area. Typhoid Mary is indeed a good example. All I am saying that you do not want to have a situation like this; where you first have to go to court to isolate someone when they are ill. Or telling people to wear a mask. And for the sake of argument lets leave Covid-9 out for it for a second. It may the next time being something as contagious as Covid-19, but as lethal as Ebola. Than you do not have the time to go to court over this. And that is why I said that this should be covered in either law or constitution. And hence the reason I used the term 'some very careful wording', because I am (was) fully aware that making any amendments to such a basic right is obviously a difficult decision for many people.

Joey

I do want the government to prove its case before a court of law. The alternative means that government can simply arrest you and lock you up for life, or just make you disappear completely, with no accountability. They don't need to charge you, or even accuse you of committing a crime. They can simply walk into your home and execute you with impunity. Like they do in China, Venezuela, Cuba, and other leftist sh*tholes where nobody has any rights. That may be what the fascist leftist Democrats want, but in the US we hold government accountable for its actions. They cannot lock people up without due process of law. It is a fundamental right that every American has.

As I have already demonstrated, this issue has already been covered by both the US Constitution and the Supreme Court. No government (local, State, or federal) in the US is beyond the restrictions imposed by the US Constitution on their power, regardless of whether there is a declared emergency or not. The US Constitution, and the Bill of Rights specifically, are sacrosanct and cannot be dismissed out of hand by anyone in government for any reason.

 

[Glitch]

I am saying that in cases of deadly pandemics the national good may require temporary life saving measures that supersede some of our freedoms. You have expressed a desire for fascist type repression of our Constitutional right of free assembly to "save lives and property" so this sudden and irresponsible attack on a life saving lockdown for medical reasons makes no sense to me at all. I can only conclude that you have no moral compass at all.

Spoken like a true leftist who would do anything to abolish the rights of Americans and remove the restrictions placed on government by the US Constitution. Why am I not surprised? Thankfully the Supreme Court held in Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905) that even during pandemics the national good is best served by upholding the US Constitution and the Bill of Rights. Which is why they prohibited local, State, and the federal government from violating the US Constitution even during a pandemic or other national emergency.

At no time, for any reason, is the US Constitution ever superseded, suspended, or otherwise made ineffective. Unless there is another successful revolution, the US Constitution will always be the Supreme Law of the Land and can never be superseded, suspended, or otherwise made ineffective.

 

[iguanaman]

Spoken like a true leftist who would do anything to abolish the rights of Americans and remove the restrictions placed on government by the US Constitution. Why am I not surprised? Thankfully the Supreme Court held in Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905) that even during pandemics the national good is best served by upholding the US Constitution and the Bill of Rights. Which is why they prohibited local, State, and the federal government from violating the US Constitution even during a pandemic or other national emergency.

At no time, for any reason, is the US Constitution ever superseded, suspended, or otherwise made ineffective. Unless there is another successful revolution, the US Constitution will always be the Supreme Law of the Land and can never be superseded, suspended, or otherwise made ineffective.

So much has changed since 1905 that I cannot fathom a court that would not overturn that antiquated president.

 

[JoeyJoystick]

The alternative means that government can simply arrest you and lock you up for life, or just make you disappear completely, with no accountability. They don't need to charge you, or even accuse you of committing a crime. They can simply walk into your home and execute you with impunity.

If that is what they want to do, they will do it anyways. With or without any laws in place.


Joey

 

[Jason Warfield]

Orders or not...

If everyone were to wear a mask and social distance...fewer people will die, the virus gets knocked down a few pegs, we can re-open the economy and schools sooner...and when we see the second wave hit, instead of thousands per day getting infected, we'll see a hundred or so during the week, lockdown for just a week or two to get a handle on it and then re-open again.

Or...we can sit here like a third-world nation while mouth breathers p!$$, b!thch and moan about having to wear face masks, close everything down for a few more months because they erroneously think that their civil-rights are being violated (it isn't, read the actual law) and that it is in violation of the ADA (it isn't, read the actual law, it doesn't really mention masks at all).

I mean...you don't need a law to figure out that if you really want the best for America, then you sacrifice a little bit of comfort for the good of the nation. That's what patriotism is.

Unless, of course, you are one of those that confuses Trump for America......

 

[Glitch]

Orders or not...

If everyone were to wear a mask and social distance...fewer people will die,

An unsupported assumption.

the virus gets knocked down a few pegs, we can re-open the economy and schools sooner...

Obviously not before the election. That was the whole point of the Democrat sycophants in the media inciting panic and terror with their misinformation.

After the election COVID-19 will cease to be an issue. Just another influenza virus like SARS or MERS, no big deal. There will be a vaccine available just in time - after the election of course.

Or...we can sit here like a third-world nation while mouth breathers p!$$, b!thch and moan about having to wear face masks, close everything down for a few more months because they erroneously think that their civil-rights are being violated (it isn't, read the actual law) and that it is in violation of the ADA (it isn't, read the actual law, it doesn't really mention masks at all).

It is plain to see who would give government absolute power over its citizens.

I mean...you don't need a law to figure out that if you really want the best for America, then you sacrifice a little bit of comfort for the good of the nation. That's what patriotism is.

Unless, of course, you are one of those that confuses Trump for America......

We know, leftists never consider laws actually applying to them. Laws are meant for others to obey. It is that kind of hypocrisy that defines leftists.

 

[Stealers Wheel]

According to the Fifth Amendment “[No person shall] ... be deprived of life, liberty, or property, without due process of law.” Furthermore, the Fourteenth Amendment stays that “[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States without due process of law.”

Every Governor who has issued a “stay-at-home” order has violated both the Fifth and Fourteenth Amendments of the US Constitution. Yes, those Governors were abiding by the laws enacted by their respective State legislatures, but those laws are illegal.

The Supreme Court in United States v. Wheeler, 254 U.S. 281 (1920) held that the right to travel without government restriction is one of those “privileges or immunities” of every American. In order to restrict the liberty of anyone both the States and the federal government must require procedural due process. That means a trial for every person they wish to restrict or confine.

No government (local, State, or federal) has the lawful power to curtail natural rights by decree. That includes the illegal curfew ordinances declared by city Mayors. There are no provisions within the US Constitution that grants any government the power to restrict, suspend, or terminate the Bill of Rights.

The States and federal government may only quarantine those who are actively contagious and will infect others imminently. And they must present evidence of both at a trial, at which the government bears the burden of proof.

That means a trial is required before any quarantine, no matter the public danger, for every individual whose liberty they wish to restrict. It must also be a fair trial, not one driven by media-generated mass hysteria or government-generated fear. Anything less is a violation of due process and our constitutionally protected rights.

AND ... If I BELIEVE I have the right to spread the virus, that is a first amendment issue. If I believe that this pandemic is foretold in the book of Revelation, and I believe I must be an instrument in the hand of God to bring about Armageddon, the Constitution says I can freely exercise that religious belief.

So there's that.

 

[soylentgreen]

"Give me liberty or give me death!"

It may come sooner than you think...death, that is...:2razz:

What an amusing reply when in the face of a pandemic. Giving you the liberty to die is what you are asking for.

 

[Daisy]

What an amusing reply when in the face of a pandemic. Giving you the liberty to die is what you are asking for.

Wrong...it's what those idiots who refuse to follow rules are asking for...you don't recognize sarcasm when you see it...got it...

 

[noonereal]

Great, more crazy sounds from the right.

WTF is with these people?

 

[noonereal]

What an amusing reply when in the face of a pandemic. Giving you the liberty to die is what you are asking for.

It's straight up insanity.

Why even reply?

 

[Daisy]

Great, more crazy sounds from the right.

WTF is with these people?

I did say YOU...as in not ME...

 

[CaughtInThe]

According to the Fifth Amendment “[No person shall] ... be deprived of life, liberty, or property, without due process of law.” Furthermore, the Fourteenth Amendment stays that “[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States without due process of law.”

Every Governor who has issued a “stay-at-home” order has violated both the Fifth and Fourteenth Amendments of the US Constitution. Yes, those Governors were abiding by the laws enacted by their respective State legislatures, but those laws are illegal.

The Supreme Court in United States v. Wheeler, 254 U.S. 281 (1920) held that the right to travel without government restriction is one of those “privileges or immunities” of every American. In order to restrict the liberty of anyone both the States and the federal government must require procedural due process. That means a trial for every person they wish to restrict or confine.

No government (local, State, or federal) has the lawful power to curtail natural rights by decree. That includes the illegal curfew ordinances declared by city Mayors. There are no provisions within the US Constitution that grants any government the power to restrict, suspend, or terminate the Bill of Rights.

The States and federal government may only quarantine those who are actively contagious and will infect others imminently. And they must present evidence of both at a trial, at which the government bears the burden of proof.

That means a trial is required before any quarantine, no matter the public danger, for every individual whose liberty they wish to restrict. It must also be a fair trial, not one driven by media-generated mass hysteria or government-generated fear. Anything less is a violation of due process and our constitutionally protected rights.

You are literally the person that is going to drag this thing out longer and cost more small businesses their livelihood.