Gathering guidance is right, but enforcement?
Should people take part in large gatherings of any kind, or small indoor gatherings between people of different households? No, probably not, and probably not at Thanksgiving, either. COVID-19 has never been more prevalent in the Tri-Lakes area as it is right now. We need to stop the spread and keep it from getting worse — keep it from killing more people. Social distancing, mask wearing and hand washing reduce the risk, but to everything there is a season, and now is the season for keeping your distance.
But should Gov. Andrew Cuomo have the power to dictate local police departments, code officers or health department workers go into homes to break up those gatherings without observing basic due process rights?
It appears that’s what the governor is telling local governments to do with an edict this past week limiting gatherings in people’s homes to 10 people or less. The governor says he has contact tracing results that show gatherings in homes are one of three central reasons COVID-19 is spreading throughout the state. That is probably true.
The U.S. Constitution, however, does not appear to give him the right make the matter one of law. The Supreme Court has upheld time and again the right to privacy inside one’s home. How, exactly, does the governor plan to enforce that regulation and not violate the rights of privacy enumerated by the Supreme Court in Mapp v. Ohio, an illegal search and seizure case; Griswold v. Connecticut, a contraception case; or Lawrence v. Texas, a 2003 Supreme Court case that invalidated a Texas sodomy law? If there is no evidence of wrongdoing from outside a dwelling, such as loud noise or a bunch of cars in front of a house, how can anyone enforce this order without a search warrant? Are families serving turkey, mashed potatoes, gravy and a search warrant for dessert this year? We’re sure judges are going to love signing warrants for every time a house is suspected of having more than 10 people in it, for however long Cuomo’s order lasts.
This is not something to hyperventilate over. In the eight months of the pandemic, state and local government leaders have repeatedly issued orders that have the force of law but are almost completely unenforceable. A good example is New York’s 14-day quarantine order for people coming from states with high COVID numbers. There may have been a little bit of enforcement, but if so we never saw evidence of it. This summer and fall the Adirondacks had what may have been record tourism, and license plates from states on New York’s quarantine list abounded. We never heard of any quarantine police action.
The idea, of course, is simple: If you need to get the masses to do something and issue a recommendation, not only will people who don’t want to follow it not do so, but many who do will be lackadaisical about it. But if you issue the same thing as an order — even if you can’t enforce it — the people who think it should be obeyed will be sure to do it, and many of those who don’t will grumblingly comply as well. It’s the same kind of thing as when you’re dealing with kids and soldiers; you have to speak with authority to get their attention.
But you have to be careful. If you infringe on people’s rights too much, they’ll call out your hollow threat and your overreach. Your authority will crumble, and the gambit won’t work next time. It can be a fine line.
We know in-home Halloween parties contributed to the spread of COVID-19, so it would appear guidance around small gatherings is warranted. But guidance is where the government’s role should end when it comes to the privacy of one’s home.
“Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence,” Justice Tom C. Clark wrote in his majority opinion in Mapp v. Ohio, a 1961 Supreme Court case in which the court ruled evidence seized without a valid search warrant violated a woman’s right to privacy in her home. “‘As Mr. Justice Brandeis, dissenting, said in Olmstead v. United States, 277 U. S. 438, 485 (1928): ‘Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. … If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.’ … Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the states, and that the right to be secure against rude invasions of privacy by state officers is, therefore, constitutional in origin, we can no longer permit that right to remain an empty promise. Because it is enforceable in the same manner and to like effect as other basic rights secured by the Due Process Clause, we can no longer permit it to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment.”
While it is unassailable that health emergencies allow some infringement on rights, in our view Cuomo is on a slippery slope when it comes to enforcing the gathering limit.
At the same time, he’s right. It’s best for the common good if everyone avoids multi-household gatherings for now. The responsibility is on each of us.