Photo by Aaron Burden on Unsplash

I recently wrote about how I thought the Constitution and Bill of Rights were being trampled on during the coronavirus crisis. This raised the question of whether or not I believed in the executive branch’s use of “Emergency Powers.” Are there special circumstances and times to restrict civil liberties? 

Yes, I do believe in Emergency Powers. In law school, we discussed how special powers are given to the executive branch in times of war or other exigent circumstances to give the executive branch a boost to temporarily address an emergency, until the legislature can convene or until an emergency passes. During these times we allow the government, led by the executive branch, more liberty to trample on individual rights for the sake of the public health and good.

I do not have all the answers for the current crisis we face, but I do believe we have a lot of the tools to defeat Covid-19 given to us in the form of our government, the “constitutional republic.” In America, we have a moderate form of government in which our officials are elected by citizens to lead them as directed by our country’s constitution.

We are not a true democracy. In a pure democracy, a leader is not constrained by a constitution and you have a greater likelihood of mob rule, the majority over the minority. We are also not a dictatorship, rather a moderate government with checks and balances which can sometimes seem slower to act, but this prevents tyranny. During special and extreme circumstances, we the people, give the executive branch special emergency powers to combat the inefficiencies of a constitutional republic, yet we must recognize constraints and limits to that power, lest we cease to be a constitutional republic and become more like China.

There is great potential for abuse in the emergency powers we give to the executive branch. We must guard against the tyranny of the majority and the tyranny of the government. As Justice Robert Jackson stated in his dissent in Korematsu v. United States, the case that upheld the internment of Japanese during WWII, each emergency power “lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” As a criminal defense attorney, I’ve seen the erosion of the 5th Amendment search and seizure laws over the years. Imagine a government using “emergency powers” to search every home in Virginia Beach to deal with the drug epidemic problem in America?

In the beginning when the governor of Virginia called for a state of emergency, all we had were “scientific models” because of the unknown nature of the virus and a lack of data from Communist China. But in hindsight, we see that the scientific models used by governors to support lockdowns were obviously pretty far off in their predictions. Lockdowns may have made sense initially, but we should adapt our approach as our evidence on the true nature of this virus accumulates.

I have concerns over when and how long the governor can use “emergency” powers. Where do we draw the line for when a virus is deadly enough to constitute a state of emergency?

Dr. Scott Atlas at Stanford University Medical Center believes the fatality rate of Covid-19 to be between 0.1 and 0.2 in this study and argues to stop the panic and end the total isolation because the overwhelming majority of people do not have any significant risk of dying from Covid-19. He is still in favor of isolating the sick and vulnerable but would allow the healthy to develop herd immunity. While the scientific experts sort through their facts, I raise questions that I naturally have from my political science and legal background that can be helpful to our present situation. Covid-19 should be a problem resolved with expert input from various disciplines, from medical experts to experts in business, economics, and political science. Here are my concerns.

The Standard for the Use of Emergency Powers

What is the standard of evidence required to establish an emergency? 

When do we have a true emergency? What will stop a governor or president from declaring that climate change is an emergency to put limits on travel or bypass congress in establishing new regulations? Or declaring that illegal immigration is an emergency and bypassing congress in building a border wall? What if the governor can cite studies and “scientific models” showing people will die from climate change or the next flu? The CDC reported in 2017 we had 647,457 die of heart disease. Does that call for a state of emergency? Do we give the government power to control what foods we eat and order us not to eat fast-food? What prevents car accidents, heart disease, or flu and pneumonia from becoming reasons for a state of emergency? 

By defining the emergency that needs to be addressed, we can also see when we have abated the problem. Is the emergency situation that our hospitals might be overwhelmed? Or is it that we don’t have enough ventilators or PPE (and how is “enough” determined)? Or is the emergency situation the extremely broad fact that people are dying of Covid-19? Some have suggested that we went from trying not to overwhelm hospitals (or flatting the curve) to actually flattening the health care system. As hospitals put doctors, nurses, and staff on furlough the governor must examine what the true emergency is, lest he create new emergencies in the process.

As we discover the virus was here earlier than we thought and that it is more prevalent than we thought and the groups most at risk more defined than we thought, perhaps we are closer to drawing an end to the “state of emergency.” This does not mean that we don’t address Covid-19. It just means that the executive branch and its agencies like the Department of Health can adjust to attack the problem with a sniper rifle and not a shotgun. As the evidence upon which an emergency was established is increasingly challenged by new data, the scope of emergency powers should decrease accordingly.

The Scope of Emergency Power:

But for the sake of argument, let’s suppose the current emergency never abates and Covid-19 turns out to be far more deadly than our current indicators suggest. As a constitutional republic, I would still have concerns on the scope of emergency power given to the executive branch. How much tracking do we allow the government to do on us? Can they track my cell phone without a warrant? Should they be allowed to force us to take vaccines? Is it ever acceptable to force the healthy to isolate when historically quarantines have only been reserved for the sick and vulnerable?

What practical recourse does a small business owner have against inconsistencies in the executive orders? Ironically, my dog can get a haircut at PetSmart, but my wife’s hair salon lady doesn’t have the resources to hire a lawyer to get her business back open without risking a criminal misdemeanor. As business owners close up their businesses and lose their life work and savings, how do we justify the unlawful taking of property and interfering with the ability of people to make a living?

Many Virginians are beginning to get a distaste for blanket statewide executive orders. Obviously, NYC where people are packed like sardines is a much different place than South Dakota. Similarly, each jurisdiction in Virginia is different. Why should a citizen living in Bland, Virginia not be able to get “elective” knee-replacement surgery or heart surgery like a valve repair because of a governor’s edict? Today, four counties in Virginia still report 0 cases of Covid-19 but they are still in lockdown. What about the constitutional rights of the barber or dentist in Bland, Virginia who has to close his business?

Restrictions on civil liberties should be narrowly tailored to respect rights protected in the Bill of Rights, such as the 1st Amendment right to freedom of religion. Why are churches treated differently than Lowe’s and Walmart if churches can engage in social distancing? Beginning May 8 theaters, concert venues, and fitness centers are allowed to reopen under EO-53, but public and private religious gatherings of more than 10 people remain restricted until June 10 under EO-55. What gives?

The Need for Accountability on the Governor’s Emergency Powers:

As you can see, I’m concerned about adequate checks and balances on the governor’s power. Under separation of powers principles, I don’t see why the governor of Virginia should be allowed to create orders that have the effect of law, creating misdemeanor criminal penalties without any legislative approval. I’m told by representatives in the state legislature that they find out about the governor’s edicts (Executive Orders) the same time citizens do at the governor’s press conferences.

Perhaps just like with the internment camps, we will see that “we went too far” in hindsight, after others have been injured and hurt or their livelihoods destroyed. Collateral damage: job loss and depression, suicides, domestic violence and abuse, decreased life expectancy for millions of Americans. Businesses closed and homes lost. The cure should not be worse than the disease.

Here’s a case in point: The Virginia Hospital and Healthcare Association in Virginia, made of up doctors and health care professionals asked the governor to open up hospitals to allow for non-emergency but medically necessary care to be offered, lest the healthcare industry fall apart. In Virginia, over 60,000 people have had their medical procedures delayed. But Governor Northam is not listening to these doctors. Here is a copy of the letter the VHHA wrote to Governor Northam over a week ago.

A doctor who first shared this letter with me said this: “Virginia is utilizing 21% of our ventilators for COVID19 and NON-COVID19 patients. The number has been static (flat) since late March. The hospital organization says that Virginia meets the criteria of the “Open up America Again Guidance.” They want the hospitals REOPENED and have a plan to ensure we monitor utilization and infection rates so that our system is not inundated. This includes a plan ensuring the PPE supply. Governor Northam went against the advice of these doctors and hospitals and extended closure. The healthcare system might collapse but not from COVID19 infection, rather from underfunding due to under utilization.”

How to Implement Accountability on Emergency Powers:

The accountability should be threefold: the courts, the legislature, and the people.

Courts can rule parts of the Executive Order unconstitutional. A Virginia Circuit Court judge just ruled that the governor exceeded his authority by forcing an indoor gun range in Lynchburg to close. There is a pending federal lawsuit against Governor Northam’s Executive Order since it discriminates against churches based on the religious nature of their meetings. This church on the Eastern Shore of Virginia that practiced social distancing argues its First Amendment rights have been discriminated against while stores like Costco and Home Depot are allowed to remain open with no limits on the number of people allowed in the store. This battle is being won in other courts around the country.

The legislative branch can step up to protect its legislative authority as well. Perhaps the Virginia legislature could pass a law requiring that the state legislature vote to approve continuing a state of emergency after 30 days have passed from the initial declaration, so there is legislative accountability for the governor. Our representatives, who are accountable to their local constituents that voted them in, can go on the record for where they stand and vote on whether there is a true emergency that demands the use of Emergency Powers and define what the emergency is. This gives a voice to the people of Virginia. The legislature can then reconvene to discuss the scope, duration, and purpose of any powers delegated to the governor.

And finally the people should hold the government accountable for its use of extraordinary power and speak up for freedom. At least one of the hospitals in my area has already started to offer elective surgery against the Governor’s lockdown orders in order to help those who need care, lest their health deteriorate. But imagine police arresting doctors and surgeons for not complying with the Governor’s executive order. I doubt that will happen, but it shows the folly of Gov. Northam’s edict. (Edit on April 29th: The Governor is responding to the pressure from the doctors and will now allow elective medical and dental procedures to go forward on May 1, so in a few days knee surgeries and heart valve repair surgeries can go forward without fear of criminal prosecution.)

As the Federalist notes, the lockdown will end when the people say it ends.