Welcome back to our course, Law in the Time of COVID-19. Here I want to continue our discussion of governmental regulation, and focusing in particular on the balance between the government's interest in protecting our public health, and our civil liberties and civil rights that arise under the constitution of the United States. The courts are going to grapple with a number of important questions involving particular government regulations focusing specifically, for example, on the restrictions and the shutdowns, and the limitations on individual behavior and business conduct. The first question that the courts are likely to deal with is, how important is the government's interest? This is not a one level obstraction, the answer to that question is easy enough. The interest is very high, given the public health crisis that we face. But the courts are likely to focus on a more narrow version of that particular question. Not just how important is our public health, but how important it is for the government to engage in these restrictions. Maybe as the science evolves and as the situation and circumstances evolve, the answer to that question will be different. So what might have looked like a strong governmental interest in shutting down big parts of the economy in say, the third week of March, might look substantially if not altogether different, if the government was imposing the same restrictions or variations on those restrictions in say, the middle of July. Without by any means trying to answer those questions, I simply note that the magnitude and nature of the government's interests may well evolve over time as the scientific circumstances evolve. Second question. What if any civil liberties are being implicated by the government's regulation? So we want to come back to our Bill of Rights of the US Constitution, which guarantees a variety of protections; freedom of speech, freedom of assembly, the right of religious worship, the right to keep and bear arms. It's a long list, and an important list, a profoundly important list, because it details the various ways in which individuals are protected against potentially overreaching government. But it's important to understand, in the context of what we're discussing here, is that individuals who will argue against government regulation and go to court to make that argument, will need to find somewhere located in the Bill of Rights, or elsewhere in the Constitution, specific protections that will protect them against government regulation. Or at least that's the argument they want to make before courts. Third question is, how intrusive is the government regulation? The answer to that question in the context of some of these restrictions, is very intrusive indeed. Although even that doesn't answer the question, because what might be extraordinarily intrusive for two or three weeks, looks different after a particular time passes. It's important in our American constitutional law of tradition to look at whether, and to what extent a fundamental right is being implicated. Certainly the government shutdowns and shelters in place are examples of the most intrusive governmental restrictions. The constitution, our constitutional law, does care about the magnitude of those intrusions, the duration, and basically how much of a burden they impose on individuals. What the court will look at is whether the government has a rational basis, those are the magic words in American constitutional law, a rational basis for imposing this restriction. If the answer to that question is yes, the businesses are likely going to lose and the government is going to win. Not because, I hasten to add, of a judgment by the court that this is a good governmental policy, that's outside the scope of what the court is tasked with doing. But because the nature of the right is not fundamental. So the Constitution is not an effective, and ought not to be an effective shield against governmental action. By contrast, if an individual's right is fundamental, is found in the Bill of Rights of the Constitution, like freedom of speech, like the right to be protected against unreasonable searches and seizures, the right to vote being another, then the government faces a much taller order, because here the court will give the government's regulation what is called strict scrutiny. It'll ask these questions in turn. First, is there a compelling interest for the government to exercise this authority? If the answer to that question is no, the government is going to lose. If the answer to that question is yes, the next question for the court is whether this particular restriction is narrowly tailored in order to meet the need identified by the government. Even if the answer to that question is yes, there is a further or last and important question, and that is whether, and to what extent there are less restrictive means that the government can utilize in order to realize its interests. That last part, the less restrictive means part of the constitutional test, is certainly going to be implicated, and significantly by government regulation in connection with the COVID-19 crisis. Now, in the other materials posted for this module and in the video interviews that I posted, we're going to drill down into some of the constitutional disputes in more detail. But the purposes of this more introductory video, is at least to provide you with a framework for how these disputes are going to be considered, and how the courts are going to enter into this very significant task of balancing government interests with individuals civil liberties protection.
