Laws, in fact, flow from the legislative process, which operates very similarly at the federal and state levels. Legislation must be passed by both houses and obtain the approval of the governor to become law. Mandatory social distancing measures in public health emergencies, such as staying home, are based on the general authority of states to protect health, safety, morality and overall well-being, known as police violence. Police violence is a very broad power by which governments regulate individual rights to protect the interests of society as a whole. Common examples of police violence include safety regulations to reduce the risk of fire, zoning laws that govern land use, and laws prohibiting gambling or prostitution. Examples of social distancing measures taken in the context of police violence in the context of the current coronavirus pandemic include mandatory home orders, mandatory quarantines for travelers, closures of non-essential businesses, prohibition of large gatherings, school closures and restrictions on bars, restaurants and other public places. As the novel coronavirus pandemic worsens, officials must be vigilant in educating and convincing the public to follow instructions to stay home and use the criminal justice process only as a last resort. On May 22, President Trump declared places of worship to be «essential» operations that would hold in-person worship services regardless of government orders. While the president does not have the power to override government orders, many states are beginning to open up and allow face-to-face worship. The CDC issued specific guidelines for faith-based worship, which it later amended to emphasize religious rights (Box 1).
The amended CDC guidelines now provide that religious organizations must be treated in the same way as entities in a similar situation. The factual question is what type of business is the right comparison for religious services: movie theaters, concerts, grocery stores, or office buildings. In a concurring statement, it rejected a California church`s request to treat churches like other businesses allowed to open, noting that «similar or stricter restrictions apply to comparable secular gatherings, including conferences, concerts, film screenings, spectator sports, and theatrical performances where large groups of people gather nearby for extended periods of time.» In his disagreement, Judge Kavanaugh said, «California`s latest security policies discriminate against places of worship and in favor of comparable secular societies. Such discrimination violates the First Amendment. Other officials have taken the opposite approach, explicitly pointing out that stay-at-home orders are enforced by the criminal justice system. When Maryland Governor Larry Hogan recently ordered to stay home, he specifically warned that violations of order would be punishable by arrest and imprisonment. But even under these circumstances, local police said they hoped to resort to arrests only if people did not comply after possible violations of order were explained. Decrees do not create new laws; Rather, they unlock emergency powers that have been previously granted, or new emergency powers that have gone through the legislative process, Tysse said.
It`s true, as the Facebook post notes, that governors and mayors can`t «make a law and impose a penalty for non-compliance,» but stay-at-home orders don`t fit that description because they have established activated powers. Many stay-at-home orders include language that states that non-compliance will be enforced through civil or criminal penalties. Civil penalties may include fines, cease and desist orders, and/or revocation of licenses. For example, the stay-at-home order in Kansas City, Missouri states that a violation of any of its bylaws «constitutes an imminent threat, poses an imminent threat to public health, and is considered a violation of Section 50-155 of the City Code of Ordinances.» This can include «fines, business suspension orders and other penalties.» Another example is Indiana`s decree to end in-person meals. which may result in the «suspension or revocation of a liquor licence». While most jurisdictions have the legal authority to enforce stay-at-home orders, some have taken a measured approach to enforcement. Most policymakers and law enforcement agencies are focused on educating the public about the importance of social distancing measures, rather than arresting or naming people who are not complying. In San Francisco, for example, the shelter-in-place order issued by the Department of Health and Human Services explicitly states that any violation of the order is an offense punishable by a fine, imprisonment, or both; However, these coercive measures are only used as a «last resort,» according to a spokesman for the San Francisco Police Department. «We are not interested in using a criminal law approach for a public health challenge,» the spokesperson said. «It`s about educating the public about voluntary compliance.» A Michigan state court has refused to issue an injunction in a case in which the scope of the governor`s stay-at-home order was challenged. The plaintiffs, five Michigan residents, alleged that the domestic travel restrictions violated their due process rights.
The Court noted that while the order severely restricted individual constitutional rights, the restrictions were proportionate given the current public health crisis. The court also highlighted the temporary nature of the restrictions in relation to the «too permanent» impact on «those who contract the virus and are unable to recover, as well as their families and friends.» In contrast, a federal court in Kentucky struck down a provision in the governor`s order requiring individuals to quarantine for 14 days after entering the state, in a case brought by state residents who wanted to travel freely in and out of the state. The Kentucky court found that the requirement was not narrowly suited to the government`s purpose because it applied to a person visiting a friend eight miles away in Ohio, but not if the visit took place eight miles away in Kentucky. In general, these powers confer broad powers. As long as the orders are temporary and non-discriminatory, they have a good chance of being enforced in court. Wisconsin`s decision has caused confusion about when it will take effect and what restrictions are in place in the meantime. Parliament had requested that the court`s decision be stayed to allow time to move on to another, less restrictive stay-at-home order, but the majority decision did not grant a stay. However, the Chief Justice who wrote the majority decision also wrote a separate concurring decision recognizing the stay request and increasing uncertainty as to their vote. Following the court ruling, some taverns planned to reopen, while some city and county local governments planned to issue their own stay-at-home orders. Following the state Supreme Court order, the health departments of Milwaukee, Appleton and other counties issued their own orders. Seventeen people, including a pastor, a restaurant owner and a state congressional candidate, are now challenging these local ordinances in federal court. «The poster`s view reflects a fundamental misunderstanding of what these states` stay-at-home orders are,» said James E.
Tysse, Supreme Court partner and appellate practice at Akin Gump Strauss Hauer & Feld LLP in Washington. DC, which focuses on constitutional issues. In cases where the scope of executive branch powers over the legislature under state law to enforce social distancing measures has been challenged, the Wisconsin Supreme Court has struck down nearly all orders from the health secretary to stay home, while the Kansas Supreme Court has upheld the governor`s order. While these cases each revolve around specific provisions of state law, they also reflect the broader political debate over the extent of executive power to restrict individual rights during a public health crisis. The Wisconsin decision is the only case where almost all provisions of a stay-at-home order have been overturned. The case was taken to state courts, which questioned the authority of the Secretary of State for Public Health to issue a longer stay-at-home order without going through an administrative process. While most courts have emphasized that stay-at-home orders are designed to protect individuals during a public health emergency, the Wisconsin court instead emphasized the importance of the administrative rule-making process to «protect all people» in a decision four or three times.