Stay orders constitutional

Are The State Government Stay Orders Constitutional? It’s Complicated.

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Charlotte, N.C. – In late March, the Sacramento Bee ran an article that claimed that the government stay orders were constitutional. In the article, the author used the 1905 Jacobson v Massachusetts Supreme Court case for justification. In that case, the suit was in regards to the state of Massachusetts forcing residents to take small pox vaccines. It had absolutely nothing to do with mandatory stay orders or quarantines.

In it’s decision, the Supreme Court made a statement that has lead many to believe the stay orders could be legal. That statement was:

Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.

Specifically, the case referenced the ability for the state to grant the authority to local governments to issue vaccination orders. Saying this statement this gives the states or national government power to issue stay orders is a stretch of the decision. In no way is this a clear indication that the stay orders are actually legal.

The National Institute of Health took a closer look into this situation as well. In regards to the vaccination as mentioned above, NIH determined that a state would not be able to force someone to take a proven effective vaccine. Their argument was for the segregation of infected and exposed from the normal population. Which is exactly what has happened in the case of the coronavirus. Here’s their statements on the matter.

Here again, modern constitutional law demands a high level of justification. The Supreme Court has long recognized that “involuntary confinement of an individual for any reason, is a deprivation of liberty which the State cannot accomplish without due process of law.

The NIH based their determination on the Supreme Court decisions O’Connor v Donaldson and Foucha v Louisiana. The NIH concluded that most constitutional scholars agree that this type of involuntary confinement determination would also be applied for contagious diseases. This would imply that the stay orders would not be constitutional.

In looking at the stay orders from this perspective, the government would be under a burden of proof. They would have to provide convincing and clear evidence that a person posed a public health risk and would transmit a disease if not confined. With just over 629,000 coronavirus cases in the US, this means millions of Americans are under stay orders when they should not be.

The NIH understood that their recommendations for self isolation and quarantine were most likely not constitutional. Yet, they stuck with those recommendations and state and federal officials never questioned. This is not to say that the stay home orders have not had a direct impact on slowing the coronavirus spread. Limiting interactions of people will always limit spread of potentially contagious disease and virus.

The stay home orders have directly had an affect on the lives of millions of Americans who are not infected, however. In just the past month, 22 million Americans have been forced to file for unemployment. Approximately 95% of the US population is under some form of stay-home order. It is safe to say that the stay home orders have impacted Americans more than the coronavirus at this point.

Around the country, people are growing restless with the stay home orders. Recent events in North Carolina and in Michigan involving protests show that many want their governments to reconsider these orders. As they should. The orders are not only a government overreach, but unconstitutional.

General George S Patton is credited with the following quote: “Take calculated risks. That is quite different from being rash.“

It is time for a common sense approach to the coronavirus and to get the economy back up and going. The government can make strong recommendations regarding certain groups that should remain at home. The CDC has already recommended a mask to anyone going out in public. There is even a video to show someone how to easily make their own mask.

It is time for America to take a calculated risk. It is time to start working to reopen the United States of America.

You can contact Jared through The Liberty Loft’s website or by Twitter. If you like what you read, please consider donating to support The Liberty Loft so we can continue to deliver great content.

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