The Wuhan Virus and the Constitutional Right to Assembly

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Several states, including the People’s Republic of California and New York, have declared emergencies which they seem to believe authorize them to limit or abridge the right to assembly.  In California, for instance, as of four days ago, gatherings larger than 50 people are supposed to cancel, according to the state government, and smaller gatherings which cannot guarantee six feet of space between attendees are also supposed to cancel (I admit that here in Arizona we are violating this—my four siblings and I all share rooms. Mea culpa). Meanwhile, President Trump has also declared a national emergency.

Fortunately, his declaration does NOT mention limiting assembly—it is merely concerned with the quarantining of at-risk or foreign individuals, government functions, aiding medical personnel, and facilitating the distribution of necessary resources. Since restaurants, schools, and churches are closed, conferences canceled, and people laid off work, however, effectively the right of assembly has been both limited and nearly abridged. I perceive, then, that there are two main questions to be asked: firstly, is the Wuhan virus pandemic really serious enough for a national emergency, and secondly, does the US government have the power, even in a national emergency, to abridge or limit the right to assembly?

I will address the second question first. To begin, I would like to quote the Bill of Rights of the US Constitution, since this all hinges on the government’s abilities in any case to limit assemblies. Amendment I states, “Congress shall make no law respecting … the right of the people peaceably to assemble.” The Wuhan virus, of course, is a special situation, you say. In that case, Amendment X states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The States cannot abridge the right to assembly either, due to the First Amendment, meaning the right to assembly rests with the people. Now, since the national/state government cannot make laws restricting the right of the people to assemble, and since this power is reserved to the people, we must now examine whether there are grounds for a national emergency to override these parts of the Constitution.

Please note: while the President does have special powers during wartime, that does not apply to national emergencies. How does the US president declare a state of emergency at all then, and what powers does he have in that situation? President Trump has declared a national emergency under the Stafford Act. Now, certain specific procedures must be followed to enact the Stafford Act, and it is not at all clear that these have been followed. Further, the Stafford Act does NOT give the president the power to abridge or limit assembly, even in a national emergency. Here is a quote from an article on Just Security explaining the Stafford Act, its prerequisites, and its powers (emphasis added):

“President Donald Trump has declared the COVID-19 pandemic a national emergency under the Stafford Act. This is not the first time a Stafford Act emergency declaration has been used for an infectious disease. In 2000, President Bill Clinton declared a Stafford Act emergency for outbreaks of West Nile Virus in New York and New Jersey. President Trump’s Stafford Act declaration is in addition to the federal declaration of a public health emergency by Secretary of the Department of Health and Human Services (HSS) Alex Azar on January 31, 2020, and the current 35 state emergency declarations across the United States. This Stafford Act declaration empowers the Department of Homeland Security’s Federal Emergency Management Agency (FEMA) to assist state and local governments in responding to the outbreak by coordinating relief efforts and through the release of a reported $50 billion in funding. This figure indicates supplementary money to FEMA’s existing funds and authorization of a release of funds above typical Stafford Act national emergency funding limits. At the federal level, there are a number of types of emergency declarations used to activate emergency response assistance, emergency funds, and to enable certain exemptions to legal regulatory requirements. However, a national emergency declaration does not permit waivers or intrusions on individual constitutional rights.

Note that the Stafford Act does not permit intrusions on individual rights. Furthermore, the Stafford Act allows for special powers in the situations 1) of a major disaster, which can apply “only to narrowly defined natural catastrophes;” 2) of an emergency, which applies “to any event that the President determines requires federal assistance to supplement state and local capacity to save lives, protect property, public health and safety.”

“An emergency declaration authorizes the President to direct any federal agency to use existing resources to coordinate disaster relief, assist state and local authorities with health measures, including control efforts, and the distribution of consumable supplies (including medicines). A limit of $5 million in federal funding typically applies for each emergency. However, with congressional notification, the president is authorized to increase funding above the applicable limits. It is not clear yet whether this process has occurred.”

In other words, the Stafford Act neither allows for the abridgment or limitation of personal, constitutional rights nor does it authorize everything that President Trump is doing, particularly since it is unclear whether the Stafford Act’s requirements have been met as to when it can be enacted. Not only that, but a national “emergency” gives the president, and the government, fewer rights than a “major disaster.” Finally,

“There is still a lack of clarity over the process leading to the declaration of COVID-19 as a national emergency. Typically, a Stafford Act declaration is triggered by a Governor of an affected state submitting a request to the President within 30 days of the incident. The request must be based on the Governor’s finding that the incident exceeds the state and local government’s ability to respond, and federal assistance is necessary to save lives, property, and public health. The Federal Emergency Management Agency (FEMA) assesses the request and makes a recommendation to the President.”

In sum, every single state’s governor would have to submit a request for emergency aid for the Stafford Act actually to authorize a full-scale national emergency that would apply equally to everyone. Therefore, currently, not only can the states not abridge the right to assemble (yes, I know they already have, practically speaking), neither can the federal government—it is both illegal and unconstitutional.

I would like to end with a personal warning that the Wuhan virus “epidemic” is not quite so much of an existential threat as it appears in media hysteria. Yes, “more than 14,000 people” in the US have the Wuhan virus. That sounds like a scary amount of people, but it is less alarming when you realize, presuming the 2018 US population of about 327 million people, only 0.000043% of the population is affected. Of course, we need to be cautious. My 91-year-old grandmother lives with my family, and I know families who have children with serious auto-immune diseases, so I understand that it can be alarming to know that the Wuhan virus is not fully contained. Hygiene is especially important.

Yet, there have been 34 million cases of the flu in the US this flu season, 350,000 hospitalizations, and 20,000 deaths. Just this flu season! Furthermore, unless children have serious auto-immune diseases, they are far less likely to get the Wuhan virus than the flu—and the flu is far more likely to be deadly to children! No schools were shut down due to flu, no churches closed, no conferences canceled. This seems to be, frankly, an overreaction, due not to a rational examination of past data or a rational assessment of the (unwarranted) damage this could do to the economy, schools, etc., but to an emotional and hyperbolic fear of what could happen in the future.

As famous 20th-century writer C. S. Lewis would have said in response to our question, “How are we to live in the midst of a coronavirus pandemic? Why, as you would have lived in the sixteenth century when the plague visited London every year, or as you would have lived in a Viking age when raiders from Scandinavia might land and cut your throat any night; or, indeed, as you are already living in an age of cancer … syphilis … motor accidents.” In other words, we should be going to church, school, work, the library, and the movie theater—and if you don’t have a strong enough spine, I believe that Amazon is still shipping.

For those of you who have been personally affected by the Wuhan virus, I assure you that I am praying for you every day. But I do not think that we are in a state of national emergency. Even if you disagree with that (and I know that there are experts who do have more information than I), you cannot deny that the intrusive actions being taken and enforced currently, both by state and federal governments, are beyond what is authorized both under the US Constitution and the Stafford Act. And if the government finalizes and enforces its efforts so far to limit or abridge the fundamental, constitutional right to assembly, the American people will know that we really do have a national emergency—we have a violation of fundamental rights and a constitutional crisis on our hands.

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