One unfortunate consequence of [the US still lacking enough tests to cover everyone] is that we rely on people to come forward and ask for testing. The natural effect of your proposal would be to deter some people from getting tested at all!
(And yes, the problem here isn’t directly with your proposal. But still, incentives are hard to get right.)
You can extend the same negligence standard further, though. You can tell people: check your temperature in the morning, and if you have a fever you are lethally dangerous. That facts of the situation we’re in are such that, going outside with a fever really does burden other people with unconscionable risk. But we’ve left it for individual people to deduce that, which means we can’t enforce that as a standard.
A law could be passed that said, if prosecution can show beyond a reasonable doubt that you either knew or did not care to know whether you had a fever when you left the house, and you left the house anyway, that that is sufficient to show a negligent disregard for others’ safety. You’d then have to make an affirmative defence for why it was not actually negligent (for instance, you could argue that you’d have coronavirus before, or that it was reasonable to believe you could not encounter anyone).
A lot of drug laws work on sort of analogous logic: they define “trafficable quantities”, such that showing you possess some amount of a drug is sufficient to argue you’re distributing that drug, and then it’s up to you to mount an affirmative defence that moves the balance of probability back in your favour. You’re still assumed innocent of the fact of possession—but the law is allowed to encode some inferences, once facts are established.
That law is void, because the right of the people to assemble peaceably shall not be infringed. Requiring that people check their temperature in order to go outside violates several constitutional rights, including due process.
You might be able to make a law which covers people who have been formally diagnosed with an infectious disease. But that law could not be passed in time to not be moot.
It would possibly be an unconstitutional law, but it is also probably an allowed emergency executive power. Anyone care to wager whether state bans on gatherings will be challenged and struck down? The one I looked most closely at was that the Washington State Governor announced a blanket ban on gatherings of more than 250 people, and called on the National Guard to enforce if necessary. That’s a very direct violation of the first amendment right to assemble, and I’d give odds that it’ll be upheld. There have been further restrictions and stay-at-home orders, but they’re not as clear about violating this right.
Oh, the order specifically prohibits religious gatherings over this size, so it ticks that box too.
I’m 30% sure that, if a legal challenge is filed, it will be dismissed as moot because by the time a judge hears the case, the emergency will be over and the emergency orders rescinded. Most of the remaining chance is on “The court does not rule on the merits for a specific reason that I don’t predict”, and the courts ruling on the merits of the ban, given that someone challenges it, seem very unlikely.
Frankly, my civic position is that the current situation is one in which temporary government overreach is appropriate, but I’m also experiencing a thing where I want to reject the precedent that the government *saying* that there’s an emergency is sufficient to invoke unconstitutional powers.
I can actually have it both ways: What is sufficient for the emergency unconstitutional powers to be invoked is the *public* acknowledging that there is an emergency. But that terrifies me, because by around week 15 of the lockdown a large segment of the public is going to believe that there is no longer an emergency worth those powers, and the Just Rebellion Against the Tyranny will begin.
True, but there are some anti-assembly laws being passed and enforced anyway. They’re clearly unconstitutional and, if left in place very long, will be struck down. Emergency actions are often more political than legal; if you do something illegal but the people who could check and balance you decide not to (hopefully because your actions make sense), you can get away with a lot.
There are limits; the perceived benefit of the action has to overcome the insult to legal propriety in the relevant minds. Banning meetings for a few weeks will probably fly, especially if the internet can substitute.
One unfortunate consequence of [the US still lacking enough tests to cover everyone] is that we rely on people to come forward and ask for testing. The natural effect of your proposal would be to deter some people from getting tested at all!
(And yes, the problem here isn’t directly with your proposal. But still, incentives are hard to get right.)
You can extend the same negligence standard further, though. You can tell people: check your temperature in the morning, and if you have a fever you are lethally dangerous. That facts of the situation we’re in are such that, going outside with a fever really does burden other people with unconscionable risk. But we’ve left it for individual people to deduce that, which means we can’t enforce that as a standard.
A law could be passed that said, if prosecution can show beyond a reasonable doubt that you either knew or did not care to know whether you had a fever when you left the house, and you left the house anyway, that that is sufficient to show a negligent disregard for others’ safety. You’d then have to make an affirmative defence for why it was not actually negligent (for instance, you could argue that you’d have coronavirus before, or that it was reasonable to believe you could not encounter anyone).
A lot of drug laws work on sort of analogous logic: they define “trafficable quantities”, such that showing you possess some amount of a drug is sufficient to argue you’re distributing that drug, and then it’s up to you to mount an affirmative defence that moves the balance of probability back in your favour. You’re still assumed innocent of the fact of possession—but the law is allowed to encode some inferences, once facts are established.
That law is void, because the right of the people to assemble peaceably shall not be infringed. Requiring that people check their temperature in order to go outside violates several constitutional rights, including due process.
You might be able to make a law which covers people who have been formally diagnosed with an infectious disease. But that law could not be passed in time to not be moot.
It would possibly be an unconstitutional law, but it is also probably an allowed emergency executive power. Anyone care to wager whether state bans on gatherings will be challenged and struck down? The one I looked most closely at was that the Washington State Governor announced a blanket ban on gatherings of more than 250 people, and called on the National Guard to enforce if necessary. That’s a very direct violation of the first amendment right to assemble, and I’d give odds that it’ll be upheld. There have been further restrictions and stay-at-home orders, but they’re not as clear about violating this right.
Oh, the order specifically prohibits religious gatherings over this size, so it ticks that box too.
I’m 30% sure that, if a legal challenge is filed, it will be dismissed as moot because by the time a judge hears the case, the emergency will be over and the emergency orders rescinded. Most of the remaining chance is on “The court does not rule on the merits for a specific reason that I don’t predict”, and the courts ruling on the merits of the ban, given that someone challenges it, seem very unlikely.
Frankly, my civic position is that the current situation is one in which temporary government overreach is appropriate, but I’m also experiencing a thing where I want to reject the precedent that the government *saying* that there’s an emergency is sufficient to invoke unconstitutional powers.
I can actually have it both ways: What is sufficient for the emergency unconstitutional powers to be invoked is the *public* acknowledging that there is an emergency. But that terrifies me, because by around week 15 of the lockdown a large segment of the public is going to believe that there is no longer an emergency worth those powers, and the Just Rebellion Against the Tyranny will begin.
My major worry is that around week 15 (if not earlier) empty store shelves will become a more pressing emergency than the virus.
True, but there are some anti-assembly laws being passed and enforced anyway. They’re clearly unconstitutional and, if left in place very long, will be struck down. Emergency actions are often more political than legal; if you do something illegal but the people who could check and balance you decide not to (hopefully because your actions make sense), you can get away with a lot.
There are limits; the perceived benefit of the action has to overcome the insult to legal propriety in the relevant minds. Banning meetings for a few weeks will probably fly, especially if the internet can substitute.