These are strange times, and a lot of people have been asking me, “Can they do that?” The word ‘that’ in the question is a fill-in-the-blank smorgasbord or a wide variety of things ranging from closing the courts to closing roads to imposing curfews to demanding that privately owned restaurants alter the way they do business to declaring martial law and suspending constitutional rights. The ‘they’ in the question ranges from city council people to mayors to the president.
The answer, like many answers given by lawyers is, “It depends.”
Let’s start at the top with a rather grand concept: habeas corpus. Habeas corpus, in its most basic terms, is a requirement that a person who is incarcerated be allowed to be brought before a judge to determine whether or not they should remain in custody. It is a fundamental right in the United States. Article I, Section 9 of the US Constitution says, “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” It’s important to note that habeas has nothing to do with whether or not you can be arrested: it has everything to do with whether or not you can be released.
Abraham Lincoln famously suspended the right of habeas corpus during the Civil War. John Merryman was held indefinitely for being a backer of the Confederate government. Merryman sued for his release. The court found that only congress could suspend the right of habeas corpus. The argument was that the suspension was listed in Article I which talked about legislative powers. If it were something the president could do without congressional approval, it would be in Article II. Lincoln disagreed and said, essentially, “well, make me comply,” and refused to release Merryman and like-positioned people. Without the muscle of the executive branch there was not much the courts could do. Rule of law only rules when we all follow it. Congress then retroactively gave Lincoln the power to suspend habeas corpus so it all became moot anyway. No definitive answer has ever been given by the courts since the power is used so seldom.
Most constitutions, both federal and state, and local charters which establish cities, have provisions which allow for the governments to over-ride certain protections in case of emergency. Most of us agree that this is an emergency. What we don’t agree upon is what can be over-ridden, and to what extent. I’ve heard some arguments that these suspensions of normal freedoms should be as narrowly written as possible so as to achieve their goals without trampling too much on the American freedoms we normally enjoy. This is generally the standard used when the government must, by necessity, invade the privacy or rights of its citizens. (Think search and seizure rules and the limited times that a government can limit religious freedom of practice – like drawing the line at human sacrifice.)
Does a curfew fall into the ‘narrowly drawn’ rule? Is that even the standard?
I don’t pretend to be a constitutional scholar, though I have been known to think a lofty thought or two in quiet moments. I certainly don’t have all the answers here. I only know enough to start thinking about what the right questions are.
Whatever the case, I’d like to think that the actions that our leaders, local, state and federal, are taking are generally done for the greater good. If a curfew is enacted it isn’t done for the purpose of making our lives more difficult, it is done for the purpose of protecting us from ourselves, or maybe just from our neighbors that won’t act right on their own. If a ‘shelter in place’ (which is a nice way of saying we are all on house arrest without having committed a crime) order gets issued, it isn’t to punish us but to keep us from being exposed to a potentially deadly virus.
I know the road to Hell can be paved with good intentions. Just bear in mind that if we all did the right thing in the first place and kept a social distance without being ordered to, none of this would have come up in the city councils and state governments.
What’s that they say? The true measure of a person is what he or she would do if they knew they would never get caught? Y’all just act right, whatever the government says, ok?
 Andrew Jackson said something similar to “make me” to the Supreme Court which led to the Trail of Tears, but that’s another tragic story for another day.
Nothing in this article should be construed as legal advice. It is being offered for informational purposes only.