California’s Stay-at-Home Order Is a Legal Mess

·6 min read

(Bloomberg Opinion) -- California Governor Gavin Newsom’s stay-at-home order may well be necessary as a matter of public health in the face of the new coronavirus — I will leave that to epidemiologists to determine. But viewed as a legal declaration, it’s a total mess.

Most worrisome, the order fails to create an exception to the stay-at-home requirement for the free press to function — an exemption that is certainly mandated by the First Amendment. Instead, the order creates exceptions by referring to a federal list of 16 “critical infrastructure sectors” — a list that itself fails to say that a free press is a constitutionally specified form of critical infrastructure, without which we cannot hope to cope with a pandemic like Covid-19.

The order is also drafted so badly that it creates contradictions with the state’s own website explaining it; with the governor’s own speech rolling it out; and with common sense.

As written, the order does not say clearly that Californians can leave their homes to buy food or medicine or other necessities. It doesn’t say whether they can go out to help family members or friends who are themselves vulnerable or otherwise in need. It is silent on going out for exercise. Although context suggests all these may be permitted, the formal legal implication of the text would be that all are prohibited.

The governor’s executive order works like this: Technically, it enforces a separate order of the state public health officer. In that document, the public health officer says that he “order[s] all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors” as specified in the federal list.

The federal list, in turn, was not written with a pandemic specifically in mind. It’s a list produced by the Department of Homeland Security’s CISA, a cyber-infrastructure agency. The purpose of the list is to identify sectors that should be given special governmental protection against external threats because they are “so vital to the United States that their incapacitation or destruction would have a debilitating effect on security, national economic security, national public health or safety.”

The list of sectors includes, in alphabetical order: chemical; commercial facilities; communications (e.g., satellites, wired and wireless technology); critical manufacturing; dams; defense industrial base; emergency services; energy; financial services; food and agriculture; government facilities sector; healthcare and public health; information technology (e.g., hardware and software); nuclear reactors, materials and waste; transportation systems; and water and wastewater systems. In a document released last night, CISA issued a statement updating this list to broaden the communications sector to include "workers who support radio, television, and media service, including, but not limited to frontline news reporters." However, CISA's website has not been updated, and the updated information is extremely hard to find, which just adds to the confusion over which workers are truly exempt.

Note that as drafted, the California executive order would not seem to allow people to go out of their houses unless they work in one of the specified sectors. Yet it seems highly unlikely that the order is intended to block people from shopping for food and drugs and other basic necessities — because no system is in place to deliver those things to all Californians. An associated California state website talks about going to the grocery store.

The order does say that “the supply chain must continue, and Californians must have access to such necessities as food, prescriptions and healthcare.” Then it says that “when people need to leave their homes or places of residence whether to obtain or perform the functions above, or to otherwise facilitate authorized necessary activities, they should at all times practice social distancing.”

This language at least hints that Californians are allowed to leave their homes under some conditions, like maybe to buy food. But strictly speaking, it doesn’t say so. It only says that people should engage in social distancing if they need to leave home “to obtain … the functions above” — technically speaking, those functions in the 16 critical sectors. That’s incoherent as a matter of legal drafting. If people could leave home to “obtain” the services delivered by these critical sectors, they could leave home for almost any reason at all. If they can only leave home to “perform” these functions, then they can’t leave home for food or medicine.

This incoherence is not trivial. An order like this is only useful if people know what it means.

The order even omits the exceptions that were specified in the seven similar stay-at-home orders issued in the Bay Area this week. Those orders allowed people to go out to care for people in need and to exercise. Arguably, the omission of these exceptions in the state-wide order means they’re not included — even though in his speech announcing the order, Newsom mentioned dog walking.

Then there’s the absence of an explicit exception for the press to do its essential job of conveying information to the public — a job that is not only crucial for sharing public health information and information on the pandemic, but also for overseeing the government during an emergency, a time when state and federal powers are enhanced.

The First Amendment certainly requires such an exception for the press. It’s highly doubtful that the state of California could constitutionally block the press from moving about in order to report and write and publish. And certainly, the press can’t be treated worse than the 16 critical infrastructure sectors the state has explicitly exempted.

The DHS/CISA list of critical infrastructure sectors should, of course, have included the press, which is certainly a critical infrastructure sector whose undermining would deeply damage functioning democracy. But even if we can forgive DHS/CISA for its shortsightedness, Newsom’s order can’t be sustained constitutionally without a press exemption.

The order, as it stands, is incoherent at best and outrageous at worst. The best solution would be quick amendments to clarify its reach and protect the free press. Otherwise, confusion and even litigation seem inevitable. That’s not what we need during a public health crisis.

(Updated the seventh and 13th paragraphs to reflect evolving CISA guidance on essential industries. )

This column does not necessarily reflect the opinion of Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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