Analysis

The Attys And Legal Logic Behind Stay-At-Home Orders

By Cara Bayles
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Law360 (March 27, 2020, 10:44 PM EDT) -- Usually, the Philadelphia city solicitor’s office handles government contracts and regulatory compliance. Its attorneys write bills and defend the city against lawsuits.

But lately, its lawyers have been deciding which Philadelphians can leave their homes.

A March 17 emergency order restricting nonessential business activities marked the city’s first attempt to limit the spread of COVID-19, the disease caused by the novel coronavirus. That order was the brainchild of City Solicitor Marcel Pratt and Mayor Jim Kenney, as well as health, commerce and public safety officials. A week later, they collaborated again on a broader order, requiring residents to stay at home as much as possible.

Pratt said those emergency measures required an “unprecedented” legal analysis by his attorneys. They looked at similar restrictions imposed by Pennsylvania and other states. They pored over local laws “to firmly ensure the city was not exceeding its authority,” Pratt said.

Philadelphia is hardly an unusual case. Across the country, city attorneys, state attorneys general and state general counsel have helped local governments draft unfamiliar and unprecedented orders requiring citizens to stay at home to slow the virus’ spread. As of Friday, at least 23 states, 70 counties and 14 cities in the U.S. had issued stay-at-home or shelter-in-place orders.

Drafting those orders is akin to tiptoeing through a legal minefield. Government attorneys must balance constitutional rights like freedom of assembly with public health concerns. The orders can’t be so loose that they’re useless, but they can’t overstep local authority and open themselves up to a legal challenge.

Many businesses and government contractors have expressed confusion about when local orders apply. They’re not alone, said Robert Verchick, a Loyola University law professor with expertise in the developing field of disaster law.

“These 10-page orders are short. They’re relatively vague. They’re drafted quickly, under unideal circumstances,” Verchick told Law360. “Governors and mayors are under tremendous stress, and their legal advisers are learning about much of this as they go.”

Government-mandated isolation is not an entirely new concept. Local governments used their quarantine powers to limit the spread of smallpox, yellow fever and the 1918 flu epidemic. More recently, in regions hit by extreme weather — from Louisiana after Hurricane Katrina to the mid-Atlantic following Superstorm Sandy — local governments issued curfews for residents amid disaster.

More sweeping shelter-in-place and stay-at-home orders, while rare, are within the purview of state and local governments — especially after a governor has declared a state of emergency.

Those orders butt up against a variety of federally recognized rights, including freedom of religion and freedom of assembly, according to Brigham Young University law professor Lisa Grow Sun. But that doesn’t mean the orders are illegal.

“Constitutional rights are not absolute. They can be overridden by sufficiently serious state interests, and protecting human life by stopping the spread of this epidemic almost certainly qualifies as such an interest,” Sun said in an email. “Courts tend to be quite deferential to the legislative and executive branches during true emergencies.”

Most states and municipalities can invoke local ordinances in their orders. Philadelphia’s health code, for example, includes a “preventative medicine” section allowing for quarantine, epidemic control and “prevention of the congregation of persons.”

But there’s little legal framework for determining what businesses and even which government contractors are considered “essential” and exempt from stay-at-home provisions.

Philadelphia’s order details several examples of what can stay open and what can’t — calling out movie theaters, hair salons, food trucks and “legal services” as businesses that did not make the cut.

Still, many companies and government contractors fall into a “gray zone.”

“It’s not practicable — or possible — to give an exhaustive list of every application of the emergency order or to identify in advance every type of business or industry,” Pratt said.

That’s meant the city is fielding calls from businesses trying to parse out whether the order applies to them.

Many local governments are basing their definitions of essential work on a guidance issued on March 19 by the Cybersecurity and Infrastructure Security Agency, which is overseen by the Department of Homeland Security. CISA defines work in the health care, pharmaceutical and food industries as essential, and breaks down the necessity of a number of other industries, from manufacturing to energy.

CISA's critical infrastructure guidance seems to allow many government contractors to keep working. The agency considers work on basic infrastructure like roads, water and sewer services to be essential, as well as the maintenance of fiber optic cables and contract work for the Department of Defense.

Philadelphia’s government contractors can continue with “emergency projects or other projects deemed essential by the city,” according to the order. That broad language leaves the urgency of that work up to individual city departments, according to Pratt.

“They are usually the best at identifying the factors that demonstrate why a city project is essential,” Pratt said.

In Louisiana, nearly all construction — public and private — is considered essential under Gov. John Bel Edwards’ order. Government construction projects would only go on hold if contractors were unable to complete the work, according to Jacques Berry, spokesman for the state’s Division of Administration, which oversees state contracts.

“Construction is going on when possible. Those contractors, unless they have told us they’re not working, are generally trying to go ahead with those projects,” Berry said. “We’re trying to set it up so the architects, engineers and accountants who work with them can work from home.”

Stay-at-home and shelter-in-place orders differ by state. The two terms’ meanings are not consistent among governments, but the latter is traditionally used for tighter restrictions.

What work is exempt from those emergency orders also varies from place to place.

That’s likely because a variety of local, legal and political considerations determine what businesses are considered essential. A state-mandated shutdown could lead to layoffs and more people on unemployment, Verchick said, but it could also mean that attorneys general and city attorneys might have to guard against employers who use a broad order as an excuse to illegally fire workers. And industry groups are lobbying local leadership, asking their businesses be considered essential so they can stay open, Verchick said.

“These stay-at-home orders, they’re based on law, but they’re also based on the interest of commerce,” he said.

Government attorneys must also consider whether their orders are susceptible to a legal challenge.

That might be why some elected officials haven’t emphasized enforcement, which could prove unpopular. When California Gov. Gavin Newsom announced his stay-at-home order earlier this month, he insisted, “People will self-regulate their behavior.”

That’s true of local businesses that could lose their licenses by violating the law, Verchick said, but a law enforcement crackdown on individuals could invite lawsuits.

“The more you were to enforce these things, the higher your legal liability might be,” Verchick said.

Going forward, local governments will have to grapple with the best way to wind these orders down, Sun said.

“Another hard and interesting question is how long to leave the measures in place and under what conditions people who have had and recovered from COVID-19 should be allowed to return to work,” she said.

Some orders have a deadline attached. Louisiana’s, which went into effect last week, expires April 13. Wisconsin’s is effective until April 24. But California’s order, signed by Newsom on March 19, has no end date.

The Constitution allows for limits on freedoms if they aren’t overly broad and there’s a compelling reason for them, and Verchick said he thinks that applies to COVID-19 restrictions. But California’s limitless extension of extraordinary measures could make its order vulnerable to a legal challenge, he said.

“It’s always a concern if we’re talking about the government using extraordinary powers or putting limitations on personal liberties,” he said.

--Editing by Aaron Pelc and Emily Kokoll.

For a reprint of this article, please contact reprints@law360.com.

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