Q&A of the Day – Are South Florida’s COVID restrictions unconstitutional?
Each day I’ll feature a listener question that’s been submitted by one of these methods.
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Today’s entry: Something for an upcoming live interview? Or an opinion from State Senator M. Diaz? The (Pennsylvania) judge wrote that people had a constitutional right to make a living under the 14th Amendment. (He) said that the order caused damage to a business’s ability to survive, and an employee’s ability to provide for one’s self, and government-induced unpredictability of nature and life. Therefore, the effect was immediate and severe.
Bottom Line: This question comes on back of the Pennsylvania ruling in which the Governor’s pandemic restrictions were found to be unconstitutional – violating the 14th amendment as cited in the note. What’s notable about this decision for all of us, outside of Pennsylvania, is that the ruling’s application of the 14th Amendment has the potential to be applicable for all Americans living under government-imposed restrictions during the pandemic. Here’s what the 14th Amendment to the US Constitution specifically states under section 1:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Now, if your business has been ordered to shut down or forced to operate at limited capacity – by the state and/or local governments could you make the case you’ve been deprived life, liberty or property without due process? Let’s just say if I were an attorney - I’d been willing to take that case. What’s important from a legal perspective is the specificity of the complaint. In Florida we’d need a specific business, citing specific government orders, with quantifiable damages to legally challenge these mandates. To date the legal challenges to local orders haven’t been along those lines. We’ve had numerous mask orders challenged in Florida to no avail but that’s been about the extent of the meaningful attempts which have reached a legal decision. There are three paths forward for those interested in this argument.
- #1 The United States Supreme Court takes up the case and issues a ruling which would be definitive across the entire country
- #2 A negatively impacted Florida business challenges the constitutionally of lockdown orders/restrictions and reaches a legal decision in our state court system
- #3 You reach out to your state Representative and Senator and demand a law restraining the broad executive authority of state and local government under emergency declarations
We have no control over what the US Supreme Court will or won’t do but South Floridians can impact the other two. It’s hard for most businesses who are harmed from the arbitrary decisions of local officials to afford a legal challenge. But if you’re able and willing and/or if there is an attorney willing to step in and volunteer services to a cause bigger than themselves – step up to the plate and make it happen. And for the rest of us...get in touch with your state reps and senators if you’d like to see an end to the undefined, broad local authority under emergency declarations. It’s clear Florida’s law on emergency declarations wasn’t created with a six-plus month pandemic in mind. Additionally, once government officials get a taste of authoritarian-style power – many are reluctant to let go of it and may be quick to employ it again in the future.