The coronavirus pandemic gripping the nation has brought to the fore the wide range of emergency powers that our state and national leaders have at their command. Panelists at the New Jersey State Bar Association (NJSBA) 2020 Virtual Annual Meeting discussed whether the executive orders issued by President Donald Trump and the governors violate civil liberties.
The panel was composed of retired Judge Harriet Derman and attorneys Jeffrey S. Jacobson, Lawrence Lustberg and Rajiv D. Parikh.
More than 100 federal laws were activated when Trump declared a national emergency on March 13, and governors across the country, including in New Jersey, have issued quarantine and stay-at-home orders.
As a result of those emergency powers, “we are in the midst of arguably the largest-scale infringement or voluntary surrender of basic civil liberties that we’ve seen in arguably in the nation’s history,” said moderator Elie Honig, a CNN legal analyst and former federal and state prosecutor.
“We have laws that restrict people’s basic right to move, to travel, to engage in commerce and to associate. The vast majority of the public have eagerly embraced these measures,” he said.
But there can be consequences when those orders are disobeyed. Authorities in New Jersey have issued thousands of citations and made dozens of arrests of individuals who have violated some the emergency orders.
“I think these laws are a challenge to our fundamental structure of government; that they threaten to inflate the power of the executive at the expense of the other branches of government,” Lustberg said. “But I still think, although it’s fraying a bit these days, we have in place a method of challenging them when they overstep. I think we all have to just thoughtfully analyze and figure out when we think it’s wrong. Let’s be clear, there’s going to be disagreement.”
Lustberg said he is concerned about discriminatory arrests because national data shows they are disproportionately affecting people of color and the poor.
Berman said the orders could present a “slippery slope” that devolves into a “power grab of our constitutional rights.” But, she said, “as long as we’re vigilant and make sure there aren’t excesses and we can resort to the courts...” Berman said emergency orders can be used judiciously, as in Jacobson v Massachusetts in 1905, where the state could compel people to be vaccinated during a smallpox outbreak.
She noted polls in New Jersey indicate the majority favor the restrictions, although that is not the case in other parts of the country.
Parikh said while he did not view the orders as a violation of constitutional rights, the courts are an option for challenges—although the courts also have the potential to be wrong, as happened with the internment of Japanese Americans during World War II.
He noted the role and scope of executive authority was debated as far back as the Federalist Papers. “Those very debates still exist today in this current environment,” Parikh said.
As to whether there will be legal challenges, Jacobson said the Fifth Court of Appeals wrote last month in a case about the quarantine, that it is a settled rule that the state is allowed to restrict one’s ability to travel, publicly assemble or worship, or leave one’s home.
Jacobson said in New Jersey it may be more difficult to sustain restrictions on nonessential businesses that may be able to open and follow social distancing guidelines, although it may be too early to mount a legal challenge.
“If we were to stay under the same kinds of restrictions for longer than the current situation would seem to dictate, perhaps courts might be open to more limited challenges,” he said.