Can Rhode Island state troopers really, lawfully, constitutionally, pull over drivers for no better reason than their car has New York license plates? Whatever happened to due process? What about the Privileges and Immunities Clause, you cry? There are two answers to these and similar questions, the first being the one you want and the second being the real one.
Most jurisdictions give significant latitude to emergency orders by the executive to manage an emergency. Not a thing someone calls an emergency, like a vanity wall, but a legit emergency. Immediate survival ranks high on reasons to turn a blind eye toward civil rights.
If you’re wondering if New York City Mayor Bill de Blasio really means “draft” when he calls for drafting medical personnel from around the U.S. to care for COVID-10[?] patients in his hard-hit city, the answer is an unequivocal “yes.” He really does want to drag doctors and nurses from their jobs elsewhere to assigned positions in New York City.
But slavery, you ask? Hey, no 18-year-old kid wanted to be drafted to fight the Viet Cong, either.
Bill de Blasio isn’t alone as a government official who sees in the crisis an opportunity to go full commissar. New York Gov. Andrew Cuomo is stealing ventilators from upstate hospitals to give to facilities downstate. New Jersey Governor Phil Murphy is similarly snatching medical supplies from private firms and facilities to use as he sees fit. And President Donald Trump has invoked the Defense Production Act to force medical equipment manufacturers to abandon customers beyond the borders—and even to sell to only the federal government.
The question isn’t whether you agree with these snatches of power, of rights, of other people’s property. If you feel your life is threatened, chances are you prioritize life ahead of property or other people’s rights rather than the finer points of constitutional law.
But there is a more basic issue at hand: what are you gonna do about it? If the trooper puts on his lights to pull you over, are you going to flee? Do you plan to argue the nuances of a Terry stop? Is that going to win the day and allow you to enjoy your full panoply of constitutional rights unmolested by agents of the state doing what they’ve been ordered to do by their superiors in the name of saving the lives of people during a pandemic?
There will be plenty of opportunity after this is over to argue about, and fight over, the decisions made in extremis. People and businesses whose property was seized can seek just compensation, which is likely a lot less than they would get on the open market at the moment, but it’s all the law allows.
What is not likely is that the courts will swing their doors wide open to provide us with immediate solace for the ills perpetrated in the name of the public good in the midst of a pandemic.
“If they want to sue me for borrowing their excess ventilators to save lives, let them sue me,” the governor responded to protests about the state’s plan to send National Guard troops to seize 20 percent of ventilators from hospitals in upstate New York for redeployment to facilities in New York City.
Is it an unconstitutional seizure of property? Maybe, but maybe not. But what it is not is the sort of seizure that will be stopped now, while the emergency proceeds and people are dying.
The likes of de Blasio, Cuomo, Murphy, and Trump engage in gratuitous 1930s-style total-state reenactments at least in part because that’s who they are and a pandemic is as good an excuse as any to push beyond the boundaries of a free society. But politicians go full commissar also because they win praise for “exercising leadership,” especially in its distilled, strongman form.
When someone is gushing blood out of a hole in their body, it poses a question: do we stop the bleeding or do we question the consent to treat, the qualifications of the treater, the myriad rules and regulations that seemed so terribly important when we had little else to be passionate about than how to dictate propriety to others, and all the rights relating thereto?
Stop the bleeding first. Argue about it later.
The problem is not that any of these issues aren’t real and serious, or that there is no reason to fear that authoritarians of all flavors will seize the opportunity to use an emergency to their own advantage. These are very real and concerning problems, and it’s not at all unfair to be worried that once this is over, if it’s over, many restrictions will linger on and many will argue how the crisis proves we need to change everything to match their ideology, regardless of what that may be.
But for the moment, this moment, let go of the urge to rush to court for an injunction you won’t get because in an emergency, the priority is to survive. Yes, many bad things are happening along the way and when this is over, we will fight, and fight hard, to obtain redress and correct the overreaching and violation of constitutional rights. But you can’t do that if you, if we, don’t survive.