People forget that there is no law which can put everyone under house arrest. This is all done voluntarily.
Why is it ok for people to shop at Walmart and not at their local small business that sells the same goods and is better equipped to enforce social distancing, with customers explicitly opting in to visit the smaller store?
If a small business can protect workers and customers, and a comparable large business is already open, the small business can consider opening and preparing to litigate all the way to the Supreme Court. With video cameras ready.
There may be a few hundred bored lawyers who remember the US constitution and would take their case pro bono. The federal government recently said it is willing to join lawsuits against states, on constitutional grounds.
Obviously, the business in question should be carefully chosen to maximize health, legal and business outcomes. But with many businesses shutdown, there's a large pool of candidates to be triaged.
Almost none of what you said is true. This is not voluntary, there are laws which give these powers, essential businesses can stay open regardless of their size, recording breaking the law while conducting non essential business won’t help you in the supreme court, the federal government is saying lots and doing very little.
I read somewhere about a store who didn't sell "essential items", but they tried to begin selling those items and the local police prevented him from pivoting. iirc it was a small AZ town.
So you maybe read about a small town in Arizona? Ok, well I buy my water refills from a small store in the Bay Area that isn’t closed down. Do our anecdotes cancel out?
Unless there's a state-mandated quota on essential businesses, what's stopping a store from adding some essential goods to their inventory and merchandising? This would reduce the burden on other stores, i.e. increasing social distancing in parking lots and within the story.
Laws exist with the consent of the governed. When laws are instituted under premises (e.g models, intelligence) that are later proved wrong (e.g. data, WMD inspections), consent should not be taken for granted.
This is goalpost moving. Of course laws exist by the consent of the governed. Your original post claimed that there was no law, and that businesses should consider litigating to the Supreme Court, relying on pro bono lawyers who "remember their Constitution", despite the complete lack of Constitutional support for your argument.
If someone could interview them on the operational and regulatory logistics of that change, we could put that on github and build a playbook for other small businesses, sharing strategies across towns & states.
IANAL, but I know some of you are so I'm asking here. I've read that challenges to these orders will not succeed because of emergency declarations. The emergency declarations are supposedly backed by some law, correct?
Don't we have a document in the national archives that guarantees things like peaceable assembly and not prohibiting exercise of religion? Yet we have people being arrested or cited for assembling, and pastors being put under arrest for holding church? Is it the temporary nature that allows this to be done?
Regarding the law that allows this kind of stuff, how does that compare to a constitution which says "congress shall make no law ..."?
If you're really interested in the topic, the podcast "All the President's Lawyers" discussed that this week. But in short, you can't read a couple of sentences from the constitution literally and expect that to override a couple hundred years of judicial interpretation.
Regarding the first amendment in particular, one relevant area of law is "time, place, and manner". E.g., just because you have free speech doesn't mean that you can go outside at 3 am with a bullhorn and start ranting; the cops can rightly cite or arrest you. More here: https://www.mtsu.edu/first-amendment/article/1023/time-place...
Freedom of assembly (and to a lesser extent, at least by precise Constitutional language, freedom to exercise religion) have Constitutional protections (that may or may not be unlimited, depending on the justice you're asking). There is no Constitutional protection for running a business or being able to patronize a given business. So protests in public and worship may be protected, but your neighborhood bar is not.
Fortunately for lawyers seeking good test cases, there's a rather long list of businesses which have been shut down. California may have more religions per capita than most places.
State's usually have laws to the tune of "if X happens then the emergency is extra super legit and the governor's orders carry the force of law" where X may or may not include a legislature vote and these laws have been exercised sparingly and in good enough taste (i.e. in actual emergencies) that they haven't been challenged much so they live in the same constitutional gray area that many obvious affronts to the text of the constitution live in.
I'm not aware of any lockdowns which are specifically targeted at small retailers while competing large retailers are allowed to be open. Where I am the small coffee shops are closed for walk-in business, but so are the Starbucks; the difference is that small coffee shops are not able to pivot to a centralized delivery platform en masse the way Starbucks is.
I can speak to a few examples specifically. It's planting season now, and high business for nurseries. In Santa Clara County, they're closed by fiat. Lowe's, Home Depot, ACE hardware sell essential things (plumbing supplies, etc), so they get to remain open, in-store nurseries and all. So, if I want tomatoes, I have to brave the crowds at Lowe's instead of hopping out to my local nursery which is rarely densely populated even in good times.
Summerwinds got closed and has to do home delivery only per the site.
After an outcry Yamagami's re-opened for customers with limited hours (rate limiting, etc) this past weekend. Not sure if Summerwinds is going to get the same reprieve.
Neither is setup for online orders though. Summerwinds has a limited set of things online so you have to call. From what I've heard its very hard to get through on the phone because they're overwhelmed. I wish I could just e-mail a list and wait a week; but they're not doing that either.
I mean, that makes perfect sense. Your local nursery is not selling essential good like you admitted.
What is the logic of letting them be open? It is very difficult to produce a perfect list of all spaces and businesses that might be "safe"; hence the only practical way of doing this is by producing a whitelist of those businesses that can remain open.
Essential services is a great demarcator of that whitelist.
This is hilarious to me. In Michigan big box stores can't sell garden items or seeds. You can still get them from any other retailer that was open. People were protesting.
Come down south to Ohio, we've somehow managed to escape many of the zealotry on both sides. We'll have most retail open by May 12th if you need anything
Where I live (not the US) the same thing is happening, except that although the big stores are open they cannot sell nonessential items. They have those aisles roped off.
That's what's supposed to be happening in CA right now. The 2nd shelter-in-place order stated that, even if you are an essential business, you were not allowed to operate non-essential components of your business.
I'd be pretty pissed off about roped-off aisles. When other people in the store aren't very vigilant about maintaining social distancing, having the additional aisles to escape into is a big deal.
They could still use aisles for transit, but if you're a hardware store with a garden area, you'd just need to close that one section. Though I'm sure you could make a case that someone gardening in their yard is essential, because it reduces their grocery store trips if they're growing food.
Well there are plenty of catergories that make little sense. Why is Dick's Sporting goods closed but Walmart is open. Why is Kohl clothing store closed but Target is open. etc.
If nothing else, at least we'll come out of this pandemic with some clear Supreme Court decisions to clarify what emergency powers state and local governments actually have. One nuance that people seem to miss is that timing matters. So a very short restriction on Constitutional rights may be acceptable, but the court places increasing scrutiny on those restrictions the longer they remain in place.
> Attorney General William Barr on Monday directed federal prosecutors to “be on the lookout” for public health measures put in place amid the coronavirus pandemic that might be running afoul of constitutional rights. In a two-page memorandum to the 93 U.S. attorneys, Barr cautioned that some state and local directives could be infringing on protected religious, speech and economic rights. “If a state or local ordinance crosses the line from an appropriate exercise of authority to stop the spread of COVID-19 into an overbearing infringement of constitutional and statutory protections, the Department of Justice may have an obligation to address that overreach in federal court,” Barr wrote.
I'd love to believe that comes from a genuine appreciation of civil liberties and not from an election-year attempt to pander to the current executive's voting base.
> Why is it ok for people to shop at Walmart and not at their local small business that sells the same goods and is better equipped to enforce social distancing, with customers explicitly opting in to visit the smaller store?
Small local businesses in the Bay Area that sell similar items to Walmart are open right now, from hardware stores to produce markets. I imagine apparel stores are shut, though many around me are doing online and appointment apparel shopping.
If Walmart is the only store open where you are, it's likely the only store that exists selling essentials where you are, and that is a different problem.
State and local governments have far greater abilities to issue orders like this than the federal government. What, exactly, is unconstitutional about a city issuing an order that revokes the ability of a business to operate due to a health emergency?
On the surface there's not much constitutional protection for engaging in business but there would be some serious schadenfreude if Wickard v. Filburn showed up to defend individuals from state prosecution for once.
edit:
To expand on this, for an individual's right to do something to be protected from the states that right must be protected under the 14th amendment. Over the years the court has found that the 1st, 2nd, 4th, etc, basically all the big stuff is protected from state infringement under the 14th. In addition to this, for the incorporation of a right to under the 14th to have any teeth to this the court must have ruled that state regulation must pass strict scrutiny to be constitutional, in layman's terms it needs to be limited in scope to the bare minimum and there as to be a damn good reason. Unless you're willing to play some serious mental gymnastics there isn't any real combination of constitutionally protected rights and court rulings that restrict infringement on those rights that result in the ability to run a nail salon or other "clearly not essential" type business. Basically, no the constitution doesn't protect you from this.
That's where civil liberties advocates old nemesis comes in. In Wickard v. Filburn the court ruled that even non-business activity that is fully contained within a state is subject to federal regulation under the interstate commerce clause because it affects market conditions if everyone does it. If this sounds like an end run around the constitution it's because it is. Normally you see this ruling used (I'd love to say "abused" but is it really abuse when it's functioning as intended?) to micro manage how states regulate businesses or go over states' heads and regulate them directly. So it would be a more or less complete 180 to see the ruling used to justify the federal government not only prevent states from regulating but allow people to go about their business without being stopped by state regulation. I think this is highly unlikely but a) it's fun to speculate and b) if the rest of 2020 has been any indication, anything is possible. Also, it should go without saying but this analysis is not exhaustive, there would be more to the issue than this.
Dumb question: what did Wickard add to the interpretation of the commerce clause that wasn't already pretty obvious after Houston East & West Texas Railway Co. v. US?
Basically the intrastate effect of Houston East & West Texas Railway Co. v. US was said to be constitutional as a byproduct of regulating interstate commerce. Importantly the former is regulating commercial activity whereas Wickard v. Filburn expands the scope of the commerce clause to purely intrastate non-commercial activity that don't affect interstate commerce and would only affect interstate commerce if everyone did it.
Uh, there are plenty of laws to keep people in their houses. In my state, anyone outside w/o an excuse can be charged with disorderly persons offense at the very least.
Why is it ok for people to shop at Walmart and not at their local small business that sells the same goods and is better equipped to enforce social distancing, with customers explicitly opting in to visit the smaller store?
If a small business can protect workers and customers, and a comparable large business is already open, the small business can consider opening and preparing to litigate all the way to the Supreme Court. With video cameras ready.
There may be a few hundred bored lawyers who remember the US constitution and would take their case pro bono. The federal government recently said it is willing to join lawsuits against states, on constitutional grounds.
Obviously, the business in question should be carefully chosen to maximize health, legal and business outcomes. But with many businesses shutdown, there's a large pool of candidates to be triaged.