Are the COVID-19 Lockdowns Constitutional?

Michigan Governor Gretchen Whitmer says she's fighting a war. And she's using emergency powers in that fight.

But governors are quickly finding that even emergency powers might have their limits.

"Tyranny has a new name and it's called a pandemic," says Robert Muise, a constitutional lawyer with the conservative American Freedom Law Center, and a co-plaintiff in a recent lawsuit the center has filed against Governor Whitmer.

Muise alleges that Whitmer has violated the First Amendment by banning church services, the Second Amendment by closing gun stores, and the 14th Amendment's equal protection clause by seeming to arbitrarily allow some places to stay open while banning others. One of his clients is a landscaper whom he says was perfectly capable of running his business while maintaining social distancing.

Josh Blackman, an associate professor of law at the South Texas College of Law Houston, says that while the emergency orders may have been legal early on, that they can become less constitutional as new information about the threat level and the effectiveness of the policy becomes clear.

"If the elected branches say there's some crisis that's going on, the courts are hesitant to second guess that," says Blackman. "But I think that deference only lasts for so long…   Measures that might have seemed necessary and proper months ago, now seem, perhaps, overkill. And I think we're starting to see courts recognize that."

Meanwhile, some businesses continue to open despite lockdown orders, local sheriffs increasingly refuse to enforce closures, DAs refuse to prosecute,  and mobility data shows Americans increasingly moving through the world again as they make their own, individual risk assessments.

"Civil disobedience has been one way that we've actually made a lot of policy changes here in the United States," says Muise. 

Produced by Zach Weissmueller. 

Photo credits: "Haircut in Michigan," Jim West/ZUMA Press/Newscom; "New Yorkers in park during quarantine," DIGGZY/SplashNews/Newscom; "Texas state police," John Konstantaras/MCT/Newscom; "Michigan barber shop," Kimberly P. Mitchell/TNS/Newscom; "De Blasio speech in the park," Anthony Behar/Sipa USA/Newscom; "Whitmer on capitol steps," Andrew Layton/ZUMA Press/Newscom; "Supreme Court columns," SIPA/Newscom; "Whitmer at Biden podium," Brian Cahn/ZUMA Press/Newscom; "Protester in front of Supreme Court," SIPA/Newscom; "Masked NYPD officer," Lev Radin/ZUMA Press/Newscom; "Armed protesters in front of Michigan capitol," Joel Marklund/ZUMA Press/Newscom; "Protesters on steps on Michigan capitol," Joel Marklund/ZUMA Press/Newscom; "Whitmer giving speech on capitol steps," Jim West/ZUMA Press/Newscom; "Officers at the Dallas airport," Jeremy Hogan/Polaris/Newscom; "California church service," Will Lester/ZUMA Press/Newscom; "Drive in church service," Luke Townsend/ZUMA Press/Newscom; "Whitmer at podium," Andrew Layton/ZUMA Press/Newscom; "End the shutdown sign," Michael Siluk/Education Images/Universal Images Group/Newscom; "Masked New Yorkers crossing bridge," Richard Harbus/MEGA/Newscom; "De Blasio with bandana mask," Anthony Behar/Sipa USA/Newscom; "Landscaper pushing wheelbarrow," Mark Hunt/Newscom; "Landscaper loading trash can," Mark Hunt/Newscom; "Empty strip mall parking lot," Jim West/ZUMA Press/Newscom; "Gretchen Whitmer meeting first responders," Jacob Cessna/Fema/ZUMA Press/Newscom; "Trump points finger at presser," Polaris/Newscom

Music credits: “Prisma” by Tomas Novoa is licensed from Artlist; “Vuelta al Sol” by Tomas Novoa is licensed from Artlist; “Assault” by Max H. is licensed by Artlist; “On the Edge,” by Max H. is licensed by Artlist