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-   -   Constitutionality of bans of > 10 person gatherings (https://boards.straightdope.com/sdmb/showthread.php?t=891952)

N9IWP 03-17-2020 06:17 PM

Constitutionality of bans of > 10 person gatherings
 
This is not to debate the merits of said bans, or the ability to enforce them. I am just wondering if Governors can legally ban gatherings of 10 or more people.

I believe there is a health and safety exception of the First Amendment, but how low does it go? I guess it might also depend on if the folks are gathering to protest.

Mods: please move if you think it is wise.

Brian

Tim R. Mortiss 03-17-2020 06:31 PM

I was wondering that myself. Also, banning bars and restaurants from serving patrons in-house seems like governmental overreach, even if it is a good idea.

Joey P 03-17-2020 06:52 PM

Some quick poking around online suggests that declaring a state of emergency is what allows them to set restrictions like this.

Oredigger77 03-17-2020 09:45 PM

In Colorado, they are doing it through the department of health not even through the Governor's office. I can't find the clip from the news tonight where they walked through how it was legal.

RioRico 03-17-2020 09:49 PM

A couple days ago I posted a cite (sorry, can't find now) of an Illinois city's State of Emergency declaration that authorized closings, quarantines, and real property forfeiture. That's a matter of state constitutions, not federal.

Mangosteen 03-17-2020 09:54 PM

Quote:

Originally Posted by RioRico (Post 22196169)
A couple days ago I posted a cite (sorry, can't find now) of an Illinois city's State of Emergency declaration that authorized closings, quarantines, and real property forfeiture. That's a matter of state constitutions, not federal.

But the Federal Constitution over rules any state law.

Tim R. Mortiss 03-18-2020 01:22 AM

Quote:

Originally Posted by Mangosteen (Post 22196174)
But the Federal Constitution over rules any state law.

In theory, according to the ninth and tenth amendments, Federal law only overrules state law in those areas that the Constitution specifically grants power to the Feds. In reality, however, you are unfortunately correct.

Joey P 03-18-2020 06:19 AM

Quote:

Originally Posted by Oredigger77 (Post 22196158)
In Colorado, they are doing it through the department of health not even through the Governor's office. I can't find the clip from the news tonight where they walked through how it was legal.

That's what I'm thinking is going to happen. The health department is going to be able to write them up and can pull their license. Remember, the health dept can close you down for certain violations, the building department can close you down for certain violations, fire, electrical and water inspections can cause problems. There's no real reason why they common council can't pass a temporary law that allows the health department to shut you down for this.
People are crying about this violating their right to assemble, but no one says that when the fire dept or building inspector sets a limit on how many people are allowed inside. I get that people don't feel like this is quite as big of a deal of a floor collapsing or not being able to get out quickly enough during a fire, but it's still a big deal. Also, it's temporary and the sooner people quit pushing back, the faster it'll be over with.


Quote:

Originally Posted by Mangosteen (Post 22196174)
But the Federal Constitution over rules any state law.

Assuming what's being done is unconstitutional, can a governor suspend federal protected constitutional rights by declaring a state of emergency in their state?
From what I've seen, the president declaring a SoE, allows them to suspend certain constitutional rights, but I'm not clear on if a governor (or even a mayor) doing the same suspends only state rights or if it covers federal rights as well.

jtur88 03-18-2020 06:35 AM

All ten of the Ten Amendments are routinely violated, with the courts ruling that compelling circumstances justify the infringement.

Joey P 03-18-2020 06:54 AM

All ten of the ten amendments? You're sure about that?

Smapti 03-18-2020 10:19 AM

Quote:

Originally Posted by Joey P (Post 22196586)
All ten of the ten amendments? You're sure about that?

So help me, I'll be deep in the cold cold ground before they quarter soldiers in my house!

Stranger On A Train 03-18-2020 11:12 AM

There is a long standing legal precedent that Constitutionally-recognized freedoms may be restricted in limited ways in the interest of public safety provided the restrictions are limited in scope, specific to the nature of the threat or hazard, and not applied arbitrarily or with obvious political bias (e.g. applying to a specific minority group or demographic). This includes freedom of press and expression (gag orders, restrictions on volatile speech or written word by individuals), right to bear arms (restrictions on type of weapons or accessories deemed to be a particular hazard, requirements for waiting periods and background checks), protections against search & seizure or quartering of soldiers in private homes (eminent domain, asset forefeiture,...I can't come up with a modern example of quartering but it's probably happened at some point), and right of assembly (proscribed 'protest zones', dispersing crowds with the potential to riot), freedom of movement (travel restrictions or evacuation orders in response to a natural disaster or attack). Of course, as virtually any minority person or anyone subject to unjustified asset forfeiture can tell you, the protection afforded by the Constitutional rights enumerated in the Bill of Rights is dependent upon the willingness of law enforcement and the court system to enforce those protections, the variance of which is all too common.

In this case there is a specific public health reason to limit the size of gatherings and prohibit mass gatherings, and I strongly suspect that courts will find against any legal challenge based upon the recognized threat that unconfined mass spread of a likely airborne pathogen poses to public safety.

Stranger

Aspenglow 03-18-2020 11:47 AM

Just chiming in to say, it's so nice to see you posting again, Stranger. Your voice has been missed.

Northern Piper 03-18-2020 12:23 PM

Where’s the song from «Welcome Back Kotter» when you need it!?!

Triskadecamus 03-19-2020 08:04 PM

Probably not constitutional. But, four lawyers and the entire Supreme Court can't meet to overturn it.

Leaper 03-19-2020 08:31 PM

Quote:

Originally Posted by Stranger On A Train (Post 22196923)
In this case there is a specific public health reason to limit the size of gatherings and prohibit mass gatherings, and I strongly suspect that courts will find against any legal challenge based upon the recognized threat that unconfined mass spread of a likely airborne pathogen poses to public safety.

Sure, that’s happened already, but I think the OP set the bar as low as *ten* for a reason. I think they were asking how low the limits could go before it started being unreasonable. Or is there no limit to the limits?

Ravenman 03-19-2020 08:41 PM

I’m just going to keep saying this.

Everyone shut up and listen to Stranger.

N9IWP 03-20-2020 12:42 PM

https://arstechnica.com/tech-policy/...irus-measures/

Don't think they go far (Judge already denied immediate injunction)

Brian

Dale Sams 03-20-2020 02:47 PM

Given that the bar on what constitutes an arrestable crime has been raised:

"I'm in for murder. What you in for?"
"Played a game of pick-up soccer"
"That's tough....well they're letting me out on my own recognizance. Good luck"

N9IWP 03-20-2020 05:35 PM

State senator(or rep) in an interview was complaining about the 10 person limit (in Wisconsin). Something like "what about big churches where folks could sit 8 feet apart"
(I didn't listen to the whole thing, just caught part of it)

Brian

RioRico 03-20-2020 05:43 PM

Quote:

Originally Posted by Smapti (Post 22196838)
So help me, I'll be deep in the cold cold ground before they quarter soldiers in my house!

I quartered troops in my house. They rented the rooms downstairs. Kept quiet, too.

Peter Morris 03-20-2020 06:26 PM

I'm willing to quarter troops in my house, provided that I also get to hang and draw them.

Hamlet 03-21-2020 10:14 AM

A New Hampshire court has ruled that the governor can ban meetings up to 50 people. No written opinion yet, and no appeal yet, so YMMV, but it's one of the first rulings I found.

Cite.

Carryon 03-21-2020 11:44 AM

I work with (not for but with) a lot of clubs, hotels and restaurants and as I was reviewing the coming weeks, I did ask about this, everyone of them told me point, the city said they would pull their food, hotel or liquor license and the results the same.

And since you can pull it for no reason while you're investigating, again the result is the same.

I do suspect the longer this goes on the more and more we'll see lawsuits brought forth especially when the businesses lose money.

UltraVires 03-21-2020 05:38 PM

Quote:

Originally Posted by Stranger On A Train (Post 22196923)
There is a long standing legal precedent that Constitutionally-recognized freedoms may be restricted in limited ways in the interest of public safety provided the restrictions are limited in scope, specific to the nature of the threat or hazard, and not applied arbitrarily or with obvious political bias (e.g. applying to a specific minority group or demographic). This includes freedom of press and expression (gag orders, restrictions on volatile speech or written word by individuals), right to bear arms (restrictions on type of weapons or accessories deemed to be a particular hazard, requirements for waiting periods and background checks), protections against search & seizure or quartering of soldiers in private homes (eminent domain, asset forefeiture,...I can't come up with a modern example of quartering but it's probably happened at some point), and right of assembly (proscribed 'protest zones', dispersing crowds with the potential to riot), freedom of movement (travel restrictions or evacuation orders in response to a natural disaster or attack). Of course, as virtually any minority person or anyone subject to unjustified asset forfeiture can tell you, the protection afforded by the Constitutional rights enumerated in the Bill of Rights is dependent upon the willingness of law enforcement and the court system to enforce those protections, the variance of which is all too common.

In this case there is a specific public health reason to limit the size of gatherings and prohibit mass gatherings, and I strongly suspect that courts will find against any legal challenge based upon the recognized threat that unconfined mass spread of a likely airborne pathogen poses to public safety.

Stranger

I agree with your legal assessment. However, from my study quarantines have been related to specific individuals or groups of individuals who you have a fear may be infected and spread disease.

Typhoid Mary could be imprisoned even though she did nothing wrong. This ship where there was a smallpox outbreak can be refused disembarking.

However, I see nothing in history, or in the spirit of any quarantine law where you can pass something like the "shelter in place" in NY, NJ, IL, CA and coming to a state near you. That is in effect that everyone is quarantined, even if proven not to be sick, so we can stop you from catching it and then next passing it on.

That seems unprecedented to me.

running coach 03-21-2020 06:03 PM

It's not a quarantine. People are allowed to go out to obtain food, medicine and other necessities. They're even allowed get some exercise.

Stranger On A Train 03-21-2020 06:38 PM

Quote:

Originally Posted by running coach (Post 22202683)
It's not a quarantine. People are allowed to go out to obtain food, medicine and other necessities. They're even allowed get some exercise.

Exactly. Quarantine and isolation are covered by specific laws (see the CDC webpage on Legal Authority for Isolation and Quarantine. Within states, there is considerable authority of the governor to place restrictions upon movement and travel after a state of emergency is declared. In addition, as Carryon notes, state and municipal governments can pull licenses, effectively shuttering those businesses and reducing the impetus for people to go out.

Of course, anybody can bring suit over almost anything given they can show some kind of cause, and it is possible that a court may side plaintiff, but as previously noted, there is a long-standing precedent that direct threats to public safety may justify restrictions on normally protected rights or freedoms provided the restrictions are limited in scope, applicable to the specific hazard, and not applied arbitrarily. Restriction upon travel and nighttime curfews are routinely applied during natural disasters to enable responders to travel unimpeded and prevent looting. And frankly, all of the restrictions that California and New York have applied so far are essentially voluntary in nature; no one has been arrested and there are no applied penalties to individuals.

There are certainly times in which these kinds of restrictions should be challenged, such as when non-violent political expression is restricted to a “freedom zone” several blocks away from the event it is protesting, but restriction of movement and assembly during a viral epidemic is really not one of them. When we start having thousands of people dying because the SARS-CoV-2 virus has spread so rapidly through the population, the questions are going to be why the federal and state governments didn’t act more quickly and effectively to stop the spread, and there are many legitimate questions to be asked in that vein.

Stranger

RioRico 03-21-2020 06:44 PM

A local low-life bar stayed open. Sheriffs came to close them down and execute the state order to pull their liquor license. I doubt the barkeep will get unemployment checks. And now the scum will have to loiter elsewhere. Hey, bears are emerging from hibernation and likely won't worry about catching COVID from their snacks. C'mon guys, cough louder, so the hairier folk can find you.

doreen 03-21-2020 11:44 PM

They can ban whatever they whatever to ban - it's just words that don't have any meaning until they enforce it. And from what I can see, mostly how they are (or actually were) trying to enforce it in NY is when the restaurants and bars were still open, the capacity was cut in half and if you had too many people you got whatever the normal consequence was for being over capacity. If a restaurant had a capacity of 100, it was cut to 50. Bowling alleys were closed to avoid what is basically a large gathering of people. Some areas are closing public parks to avoid large gatherings in parks.

And what's going on in NY is not a quarantine- I can go grocery shopping, and go out for exercise or to my mother's house (which I am not doing) or to a restaurant (seating capacity now 0) to pick up food (and possibly alcoholic beverages, as places with a liquor license can sell the with a food order to go). People are saying the governor closed all non-essential businesses down - but that's not actually what happened. He closed businesses where people gather ( gyms, bowling alleys,restaurants, hair salons) and of course, the essential businesses can stay open as can single-employee businesses - but the other non-essential businesses don't have to actually close. They simply have to allow employees to work from home, which is not possible for every person in every business but is absolutely possible for some.

It's actually almost the opposite of a quarantine - there is nowhere that I am not permitted to go. There are few places that are open that I want to go - but that's not placing a restriction on me.

Joey P 03-22-2020 12:47 AM

Quote:

Originally Posted by doreen (Post 22203189)
They can ban whatever they whatever to ban - it's just words that don't have any meaning until they enforce it. And from what I can see, mostly how they are (or actually were) trying to enforce it in NY is when the restaurants and bars were still open, the capacity was cut in half and if you had too many people you got whatever the normal consequence was for being over capacity. If a restaurant had a capacity of 100, it was cut to 50. Bowling alleys were closed to avoid what is basically a large gathering of people. Some areas are closing public parks to avoid large gatherings in parks.

A friend of mine owns a bar, the first day (Tuesday) when she essentially had to close, a few cops stopped in to pick up some food. Out of curiosity, she asked what would have happened if she had a full crowd in there and their response was a shoulder shrug and a 'we don't know, no one told us yet'. I think that's part of it, this is happening so fast that no one knows who is supposed to be enforcing it and how to handle violations. The WI governor has since said that, if it comes down to it he does have the jurisdiction to deal with violations by way of a $500 fine and/or a month in jail, but he does see to be doing his best to encourage people to abide by the restrictions so he doesn't have to go that far.

Quote:

And what's going on in NY is not a quarantine- I can go grocery shopping, and go out for exercise or to my mother's house (which I am not doing) or to a restaurant (seating capacity now 0) to pick up food (and possibly alcoholic beverages, as places with a liquor license can sell the with a food order to go).
It might not be a quarantine in the strictest sense, but they're still asking people to keep their distance from each other.

Quote:

People are saying the governor closed all non-essential businesses down - but that's not actually what happened. He closed businesses where people gather ( gyms, bowling alleys,restaurants, hair salons) and of course, the essential businesses can stay open as can single-employee businesses - but the other non-essential businesses don't have to actually close. They simply have to allow employees to work from home, which is not possible for every person in every business but is absolutely possible for some.
It think you're conflating 'closed' with 'closed to the public'.
In either case, this seems like an odd point to argue against.

Quote:

It's actually almost the opposite of a quarantine - there is nowhere that I am not permitted to go. There are few places that are open that I want to go - but that's not placing a restriction on me.
Huh?. You literally just said "He closed businesses where people gather ( gyms, bowling alleys,restaurants, hair salons)"
Huh? So, are you allowed to go to the hair salon or not? What about bowling or the gym? In one post you stated both that there's no where that you're not permitted to go and listed a bunch of places that you're not permitted to do.
Unless you're just arguing over the technically definition of quarantine, I'm not understanding.

doreen 03-22-2020 09:03 AM

Quote:

Originally Posted by Joey P (Post 22203263)
It think you're conflating 'closed' with 'closed to the public'.
In either case, this seems like an odd point to argue against.

No, I'm not conflating the two - many businesses or parts of them were never open to the public to begin with. It doesn't just apply to retail, it applies to every non-essential business with more than one employee. So a payroll processing company that doesn't have clients show up in person cannot bring their staff into the office - but they can set up their employees to work from home and avoid actually closing. There are people who are conflating the two, saying that the governor has closed all non essential businesses, and that's why I brought up the distinction.


Quote:

Huh?. You literally just said "He closed businesses where people gather (gyms, bowling alleys,restaurants, hair salons)"
Huh? So, are you allowed to go to the hair salon or not? What about bowling or the gym? In one post you stated both that there's no where that you're not permitted to go and listed a bunch of places that you're not permitted to do.
Unless you're just arguing over the technically definition of quarantine, I'm not understanding.
It's about the definition of quarantine. The restrictions are not on individuals. There is no restriction on me leaving my house and going to the hair salon - but the salon is not allowed to be open. The police will not arrest me or give me a ticket if I attend a large wedding- but the party will be broken up and the venue may be fined. If I was actually under quarantine, I wouldn't be permitted to leave my house. Typhoid Mary wasn't under quarantine when she was asked not to work as a cook - she was under quarantine when she was confined to North Brother Island.

Ulysses 03-22-2020 10:08 AM

I agree with Stranger. The right to assembly is fundamental but not absolute. As I recall, it can be limited so long as the limitation is narrowly tailored to achieve a compelling interest. As always, the outcome likely would turn on the specific facts of the case. Consider two different scenarios:

The courts would likely uphold a general ban with reasonable exceptions for essential purposes that only lasts during a limited period of weeks and was informed by experts who opine that the risk of pandemic spread is high in such situations.

On the other hand, the courts would likely strike down a ban that continues beyond what experts deem necessary, applies arbitrarily to select groups of people, or is selectively enforced in a way that results in a disproportionate impact (e.g., only limiting gatherings in urban areas so as to impact only non-whites).

Joey P 03-22-2020 10:58 AM

Quote:

Originally Posted by doreen (Post 22203624)
No, I'm not conflating the two - many businesses or parts of them were never open to the public to begin with. It doesn't just apply to retail, it applies to every non-essential business with more than one employee. So a payroll processing company that doesn't have clients show up in person cannot bring their staff into the office - but they can set up their employees to work from home and avoid actually closing. There are people who are conflating the two, saying that the governor has closed all non essential businesses, and that's why I brought up the distinction.

It's about the definition of quarantine. The restrictions are not on individuals. There is no restriction on me leaving my house and going to the hair salon - but the salon is not allowed to be open. The police will not arrest me or give me a ticket if I attend a large wedding- but the party will be broken up and the venue may be fined. If I was actually under quarantine, I wouldn't be permitted to leave my house. Typhoid Mary wasn't under quarantine when she was asked not to work as a cook - she was under quarantine when she was confined to North Brother Island.

This is all just beyond nitpicky.

But if you want to go down that road, your definition of quarantine is flawed. Being under quarantine doesn't mean you aren't allowed to leave some specific space (ie your house, a hospital room etc). It *can* mean that, as in 'I've been quarantined to my house". But that's not the overall definition of it. It simply means restraining your normal activities to prevent the spread of a disease. Federal law even defines it as separating yourself from others.

I have no idea why it's important that you make sure everyone understands that offices aren't closed, they're just not allowing people inside or that you can go hangout behind the bowling alley, you just can't go bowling.
Having said that, regardless of the exact word being used, every news report I see about makes it clear there's no restrictions to leaving your house. The issue is people congregating and potentially making spreading the virus.

Also, regarding not getting arrested or fined for violating that, yes, you can. The nature of the penalty and how it's (directly or indirectly) handled, is going to vary wildly from state to state. There's also federal laws regarding it.

CarnalK 03-22-2020 11:06 AM

Quote:

Originally Posted by Ravenman (Post 22199604)
I’m just going to keep saying this.

Everyone shut up and listen to Stranger.

Please stop. I enjoy most of his posts but he is not an epidemiologist or a Constitutional law expert.

doreen 03-22-2020 12:28 PM

Quote:

Originally Posted by Joey P (Post 22203784)
I have no idea why it's important that you make sure everyone understands that offices aren't closed, they're just not allowing people inside (snip)

Because of what you did here - I didn't say offices don't have to close , I said businesses don't have to close. It's not the same thing - there are businesses with people who work 100% from home under normal circumstances and even those who don't normally allow WFH are allowing it now.

Quote:

Also, regarding not getting arrested or fined for violating that, yes, you can. The nature of the penalty and how it's (directly or indirectly) handled, is going to vary wildly from state to state. There's also federal laws regarding it.
I'm pretty sure there isn't any state that has imposed penalties on individuals not known to have been exposed for not practicing "social distancing" - but there's a reason I said
"The police will not arrest me "rather than "The police will not arrest someone" or "will not arrest you". Although I'm not certain what California or Massachusetts is doing , I do know the police are not arresting individuals in New York and since that's where I am, the police will not arrest me.

Mangosteen 03-22-2020 12:28 PM

Quote:

Originally Posted by Ulysses (Post 22203704)
I agree with Stranger. The right to assembly is fundamental but not absolute. As I recall, it can be limited so long as the limitation is narrowly tailored to achieve a compelling interest. As always, the outcome likely would turn on the specific facts of the case. Consider two different scenarios:

The courts would likely uphold a general ban with reasonable exceptions for essential purposes that only lasts during a limited period of weeks and was informed by experts who opine that the risk of pandemic spread is high in such situations.

On the other hand, the courts would likely strike down a ban that continues beyond what experts deem necessary, applies arbitrarily to select groups of people, or is selectively enforced in a way that results in a disproportionate impact (e.g., only limiting gatherings in urban areas so as to impact only non-whites).

"what EXPERTS deem necessary". Boy, is that ever a slippery slope! Who is an "expert"? Who decides who an "expert" is? What if those "in authority" only choose to listen to whichever "expert" aligns with their way of thinking or with what laws they want enforced?

Mangosteen 03-22-2020 12:32 PM

Can A Governor Legally Order 40 Million People To Stay Home?!

https://www.facebook.com/DaveChampio...00015591181850

CarnalK 03-22-2020 12:44 PM

Quote:

Originally Posted by Mangosteen (Post 22203905)
"what EXPERTS deem necessary". Boy, is that ever a slippery slope! Who is an "expert"? Who decides who an "expert" is? What if those "in authority" only choose to listen to whichever "expert" aligns with their way of thinking or with what laws they want enforced?

Yeah, you fight the power, buddy.

Stranger On A Train 03-22-2020 01:06 PM

Quote:

Originally Posted by Mangosteen (Post 22203905)
"what EXPERTS deem necessary". Boy, is that ever a slippery slope! Who is an "expert"? Who decides who an "expert" is? What if those "in authority" only choose to listen to whichever "expert" aligns with their way of thinking or with what laws they want enforced?

In this case epidemiologists and virologists are the “experts”, and while the may not have all of the answers they have the training and experience to make the best recommendations based upon past experience.

Are you just arguing for the sake of arguing, or do you actually have a coherent objection to the measures being imposed to reduce the impact of the outbreak?

Stranger

Snowboarder Bo 03-22-2020 01:11 PM

Quote:

Originally Posted by Mangosteen (Post 22203905)
"what EXPERTS deem necessary". Boy, is that ever a slippery slope! Who is an "expert"? Who decides who an "expert" is? What if those "in authority" only choose to listen to whichever "expert" aligns with their way of thinking or with what laws they want enforced?

:rolleyes:

Ulysses 03-22-2020 01:20 PM

Quote:

Originally Posted by Mangosteen (Post 22203905)
"what EXPERTS deem necessary". Boy, is that ever a slippery slope! Who is an "expert"? Who decides who an "expert" is? What if those "in authority" only choose to listen to whichever "expert" aligns with their way of thinking or with what laws they want enforced?

The courts decide. If you're asking in good faith and genuinely interested, start with the Daubert standard and FRE 702.

https://www.law.cornell.edu/rules/fre/rule_702

Mangosteen 03-22-2020 03:09 PM

Quote:

Originally Posted by CarnalK (Post 22203934)
Yeah, you fight the power, buddy.

Thanks for your valiant attempt to answer the questions.

Stranger On A Train 03-22-2020 03:27 PM

LegalEagle’s Real Law Review(YouTube.com channel): “Can the US Legally Quarantine the Coronavirus?”

Stranger

Mangosteen 03-22-2020 03:29 PM

Quote:

Originally Posted by Stranger On A Train (Post 22203964)
In this case epidemiologists and virologists are the “experts”, and while the may not have all of the answers they have the training and experience to make the best recommendations based upon past experience.

Are you just arguing for the sake of arguing, or do you actually have a coherent objection to the measures being imposed to reduce the impact of the outbreak?

Stranger

I am simply asking who or what group will be in charge of choosing which epidemiologists and virologists to listen to. It is highly improbable that you will get a clear and concise set of steps from 100% of the top epidemiologists and virologists in the country (or world).

I would hope that a committee of elected officials (the people's representatives) make the final decision by voting for what steps to take to fight the outbreak after listening to some top epidemiologists and virologists. As you know, the US Constitution is perfectly set up to handle such a crisis and there is no reason to assume it is not.

Mangosteen 03-22-2020 03:47 PM

Quote:

Originally Posted by Ulysses (Post 22203993)
The courts decide. If you're asking in good faith and genuinely interested, start with the Daubert standard and FRE 702.

https://www.law.cornell.edu/rules/fre/rule_702

I appreciate your answer, but I really have to wonder why you feel that you have to ask me if I'm "asking in good faith" and whether or not I am "genuinely interested" in an answer.

Did you assume I was asking the questions I did as a joke or something less than serious?

The country is facing a serious crisis, but I want to be sure that when the US emerges out of this situation, we return to a country just as free as we were before the virus struck.

As you know, governments never let a good crisis good to waste and the citizens have to be vigilant against any slide toward tyranny.

Ulysses 03-22-2020 04:05 PM

Quote:

Originally Posted by Mangosteen (Post 22204219)
I appreciate your answer, but I really have to wonder why you feel that you have to ask me if I'm "asking in good faith" and whether or not I am "genuinely interested" in an answer.

Did you assume I was asking the questions I did as a joke or something less than serious?

The country is facing a serious crisis, but I want to be sure that when the US emerges out of this situation, we return to a country just as free as we were before the virus struck.

As you know, governments never let a good crisis good to waste and the citizens have to be vigilant against any slide toward tyranny.

The caveat was genuine but not meant as an assumption about your motive. I could’ve left it out. I’m sorry that iI came off presumptive.

I agree with being vigilant about our freedoms and your hope we come out of this with our liberty.

Did the info about the Daubert standard and federal rules assuage your concerns about expert testimony?

Stranger On A Train 03-22-2020 04:15 PM

Quote:

Originally Posted by Mangosteen (Post 22204193)
I am simply asking who or what group will be in charge of choosing which epidemiologists and virologists to listen to. It is highly improbable that you will get a clear and concise set of steps from 100% of the top epidemiologists and virologists in the country (or world).

In the US, that would be medical scientists at the National Institute of Allergy and Infectious Diseases (NIAID) Division of Microbiology and Infectious Diseases (DMID) to develop specific polices and plans, and the Commissioned Corps of the United States Public Health Service to put said plans into operation in conjunction with the Federal Emergency Management Agency (FEMA) and the applicable agencies of the various states and major municipalities.

Quote:

Originally Posted by Mangosteen (Post 22204193)
I would hope that a committee of elected officials (the people's representatives) make the final decision by voting for what steps to take to fight the outbreak after listening to some top epidemiologists and virologists. As you know, the US Constitution is perfectly set up to handle such a crisis and there is no reason to assume it is not.

Directing an emergency response action is essentially an executive function. The primary purpose of Congress is to pass laws and make funding available; expecting every policy decision to come to a Congressional vote would be assuring inaction and paralysis.

Quote:

Originally Posted by Mangosteen (Post 22204219)
The country is facing a serious crisis, but I want to be sure that when the US emerges out of this situation, we return to a country just as free as we were before the virus struck.

As you know, governments never let a good crisis good to waste and the citizens have to be vigilant against any slide toward tyranny.

There is always the concern that a threat, and particularly an existential threat like major terrorism or pandemic, can be used as a pretext for violating or restricting the rights of individuals. This was certainly the case after September 11, 2001, when the USA PATRIOT Act suddenly 'appeared' in its gargantuan extent of both physical size and breadth of expansion of government surveillance permissions and FISA court authority barely a month after the attack despite the fact that no one had time to read the bill in its entirety before voting it into law. But these specific guidelines of "social distancing", closing bars, restaurants, and other non-essential businesses, and putting major metropolitan areas and affected states under a voluntary lockdown are basic actions consistent with trying limit the spread of the virus and blunt the peak of COVID-19 critical care cases. These are measures that epidemiologists across the board agree upon as fundamental in response to an outbreak because absent of a vaccine or effective pharmaceutical intervention it is the only way to effectively reduce fatalities.

Stranger

UltraVires 03-22-2020 05:38 PM

Quote:

Originally Posted by Stranger On A Train (Post 22204266)
But these specific guidelines of "social distancing", closing bars, restaurants, and other non-essential businesses, and putting major metropolitan areas and affected states under a voluntary lockdown are basic actions consistent with trying limit the spread of the virus and blunt the peak of COVID-19 critical care cases. These are measures that epidemiologists across the board agree upon as fundamental in response to an outbreak because absent of a vaccine or effective pharmaceutical intervention it is the only way to effectively reduce fatalities.

What if a group of scientists (quite correctly) concluded that cars kill nearly 30,000 Americans per year and thus constitute a "public health crisis" or other such term? And let's further state that the President agrees.

If we apply neutral judicial principles to the two cases, then why couldn't the President ban cars for a "limited period of time" until they could be made safer?

IOW, this seems like a policy choice. The executive thinks that X number of deaths is an acceptable cost than having Y restrictions. One could say that about most everything in life, no? Cigarettes, alcohol, fatty foods, personal exercise, etc.

I am trying to find a principle that can be applied across the board that allows the President to make that choice in this situation where he would not be able to in all other situations, pretty much bypassing democracy.

The most obvious is that it is of limited duration. Could the President ban (or mandate) all of those things for a limited time, you know, to better inform people until the "crisis has passed"?

Also, I agree that such things as Freedom of Assembly are not absolute, but saying that they are not absolute does not equal being able to ban all assemblies entirely.

Short version: I see too many differences in these requirements than I do in past emergency declarations to simply chalk it up to general emergency or quarantine powers.

Stranger On A Train 03-22-2020 06:05 PM

Quote:

Originally Posted by UltraVires (Post 22204382)
Short version: I see too many differences in these requirements than I do in past emergency declarations to simply chalk it up to general emergency or quarantine powers.

The difference is that while the number of automobile deaths are tragic (and reducible), the numbers are relatively stable and will not increase exponentially if restrictions are not imposed. It is a risk that we collectively accept because of the benefits of modern transportation, and various regulations and laws from mandatory safety features to DUI laws are applied in efforts to further reduce unnecessary deaths. Simply stopping all automotive travel for an indefinite period would have no impact upon the number of deaths when the country returned to operation. By contrast, the goal of travel restrictions, "shelter-in-place" orders, and isolation & quarantine protocols is to prevent the epidemic from peaking so abruptly that medical facilities and personnel are overwhelmed with the quantity of cases that could be saved if resources are available.

Do you really not understand the difference between a calculated risk like allowing motor vehicle operation and a temporary restriction to prevent an viral epidemic sweeping through the population, or do you just feel that your personal right to do whatever you want should trump the only effective response to this outbreak?

Stranger

UltraVires 03-22-2020 06:14 PM

Quote:

Originally Posted by Stranger On A Train (Post 22204429)
The difference is that while the number of automobile deaths are tragic (and reducible), the numbers are relatively stable and will not increase exponentially if restrictions are not imposed. It is a risk that we collectively accept because of the benefits of modern transportation, and various regulations and laws from mandatory safety features to DUI laws are applied in efforts to further reduce unnecessary deaths. Simply stopping all automotive travel for an indefinite period would have no impact upon the number of deaths when the country returned to operation. By contrast, the goal of travel restrictions, "shelter-in-place" orders, and isolation & quarantine protocols is to prevent the epidemic from peaking so abruptly that medical facilities and personnel are overwhelmed with the quantity of cases that could be saved if resources are available.

Do you really not understand the difference between a calculated risk like allowing motor vehicle operation and a temporary restriction to prevent an viral epidemic sweeping through the population, or do you just feel that your personal right to do whatever you want should trump the only effective response to this outbreak?

Stranger

Here we go again. We cannot question anything because if we do it means that we want people to die so we can go drink at the bar. That's not what I am saying.

I am saying that an equal policy choice, advocated by others not me, have been to let this play out as for the vast majority of people the symptoms are minor and they quickly recover, and the flip side is the complete destruction of our economy. Who makes that decision in a constitutional democracy?

We don't look to constitutional constraints? We don't vote on it? We have one man making this massive policy choice all on his own, and again, in a way that has no parallel in history and no objective end to it? Can it go on for a year if it means that it saves only one single life? Can we vote on it then?


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