Are lockdowns unconstitutional? Irish and US courts arrive at different answers

Timely and relevant, one might argue, given events in this jurisdiction over the past 24 hours:

MADISON – The Wisconsin Supreme Court has struck down Gov. Tony Evers’ order shutting down daily life to limit the spread of coronavirus — marking the first time a statewide order of its kind has been knocked down by a court of last resort.

The state’s highest court sided with Republican lawmakers Wednesday in a decision that curbed the power of Democratic Gov. Tony Evers’ administration to act unilaterally during public health emergencies.

The 4-3 decision was written by four of the court’s conservatives — Chief Justice Patience Roggensack and Justices Rebecca Bradley, Daniel Kelly and Annette Ziegler.

The court’s fifth conservative, Brian Hagedorn, wrote a dissent joined by the court’s two liberals, Ann Walsh Bradley and Rebecca Dallet.

The ruling immediately lifts all restrictions on businesses and gatherings imposed by the administration’s order but keeps in place the closure of schools until fall. It comes after Evers had already begun lifting some restrictions because the spread of the virus has slowed for now.

The case in Wisconsin was taken on manifestly different grounds to the case that the Irish courts threw out yesterday (much, much, more on that case in a moment) in that the question in Wisconsin wasn’t “is a lockdown order constitutional” but rather “can a lockdown order be put in place by a single branch of the Government (the Governor) without approval from the other branch (the state legislature)”. No, answered the court:

Republicans who brought the lawsuit had asked the justices to side with them but to stay their ruling for about a week so legislators and Evers could work out a new plan to deal with the pandemic.

The justices declined to do that and had their ruling take effect immediately.

To put any new limits in place, the Democratic governor and Republican-controlled Legislature will be forced to work together to deal with the ebbs and flows of the outbreak — something the two sides have rarely been able to achieve before.

That’s a very odd request from the Republicans – asking a court to declare something unconstitutional, but not just yet. The people taking the case didn’t even want the total lockdown order lifted necessarily – they wanted the courts to give them the right to have a say in it. They’ve been granted that, and now they’re rushing, having had the lockdown declared unconstitutional, to put it back in place, constitutionally.

In Ireland yesterday, of course, the courts threw out an application to take a case challenging the constitutionality of lockdown. Delivering his judgement, Mr. Justice Meenan said in paragraph 58:

The applicants made the case that the first named respondent, in making regulations under the statute in question, was acting unconstitutionally. Delegated legislation is permissible under the Constitution and no case was made by the applicants that the regulations were outside the principles and policies contained in the enabling statute. Rather, the attack on the regulations was based on the view of the applicants that the restrictions in question were disproportionate

And said in paragraph 60 that

By reason of the foregoing, I am satisfied that the applicants, where they have standing, have not made any arguable case in support of their claim that the legislation and regulations in question are unconstitutional.

There are a couple of things to point out here: First, this is not a finding that the regulations in Ireland enabling lockdown are constitutional. The court reached no judgement on that account. What it said was that no case had been made that the regulations are not constitutional.

One of the things about taking constitutional claims in Ireland is that any law passed by the Oireachtas has something called “the presumption of constitutionality”: That is to say, much like “innocent until proven guilty” in a criminal case, a law is presumed to be constitutional until it’s not. Just because you’re acquitted in a court case doesn’t mean you didn’t do it, and just because no arguable case has been made that a law is unconstitutional, that doesn’t mean it is constitutional. It means that by and large, the court was not in a position to consider the question.

The case in Ireland was taken on several grounds, which can be basically summarised as follows:

First, that the laws governing lockdown are repugnant to the constitution.

And second, that the laws were put in place by an improperly constituted Dail.

In relation to the first point, Justice Meenan states that no case was made that the laws are unconstitutional, but rather that the case was made that they are “disproportionate”. Here’s paragraph 53 of the judgement:

Previously in this judgment, I have set out the Articles of the Constitution that provide for the personal rights of the citizen, that the dwelling of every citizen is inviolable, the right to assemble peaceably, and the practice of religion. It is clear from the wording of these various Articles that such rights are not absolute and may be restricted. The applicants accept this but maintain that the restrictions and limitation of rights provided for in ss. 3 IA and 38A are “disproportionate”

When you’re challenging the constitutionality of a law on the basis that it’s in conflict with the constitution, it’s probably not a good idea to accept that the constitution does permit the limiting of rights in some circumstances. The applicants were not asking, after all, for the court to declare the lockdown “disproportionate” – they were asking for it to be declared unconstitutional. Whether a policy is proportionate is a political question, not a legal one.

This point comes up again in paragraph 58:

The applicants made the case that the first named respondent, in making regulations under the statute in question, was acting unconstitutionally. Delegated legislation is permissible under the Constitution and no case was made by the applicants that the regulations were outside the principles and policies contained in the enabling statute. Rather, the attack on the regulations was based on the view of the applicants that the restrictions in question were disproportionate, a matter I have already dealt with.

Having failed to make a case that the laws were unconstitutional (and, in fact, having unwisely accepted to the court that they are constitutional as written) the applicants also made a second argument, more persuasive on its face, that the laws are not constitutional because the present Dáil is not empowered to make them because it has not elected a new Government.

This makes sense in one respect: Laws passed by an improperly elected or constituted Dáil would, indeed, have no legitimacy.

Once again though, this case was not well made. Here’s the summary of the case they made on this point, again from the Judgement, paragraphs 60 through 63:

  1. The applicants maintain that the passage of the legislation through the Dåil and Seanad was unconstitutional. In support of this, they question the legal standing of the Government given that three Ministers are no longer members of Dåil Eireann. They also question statements made by the Ceann Comhairle limiting the number of deputies present in the Dåil given the requirements for social distancing.
  2. In their Statement of Grounds, the applicants refer to a “caretaker Dåil ” and an outgoing incarnation of Seanad Eireann
  3. In support of their submission that these matters are justiciable, the applicants referred to the UK Supreme Court decision in R (Miller) v. The Prime Minister and Cherry v. Advocate Generalfor Scotland [2019] UKSC 41. Further, the applicants were critical as to what they considered to be the absence of any real debate on the legislation as it passed through the Dåil and Seanad. The applicants also referred to a “note ” from the Oireachtas Library & Research Service which they claim is supportive of their case.

Cherry v Advocate General, by the way, is the case that threw out Boris Johnson’s suspension of the House of Commons last year on constitutional grounds.

There is a similarity, in that the UK court arrived at a decision that parliament had been illegally shut down. In this case, the applicants are arguing that because not all TDs were permitted to be in the chamber, the Dáil was acting illegally.

The problem, though, is this: In the UK, Parliament was shut down without its consent, by an order of the Queen (on the advice of the Prime Minister). In Ireland, the restrictions on TDs attending was ordered by TDs themselves. And, as the judgement notes, the Dáil has the right to make its own rules according to paragraph 15.10 of the constitution:

Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.”

So on both grounds, the court concluded, there was no arguable case to make. There was no argument made against constitutionality, and the one that was made against the right of the Dáil to make the law in the first place was plainly at odds with the constitution.

Two things though:

First, because an argument against the constitutionality of the legislation wasn’t made in this case, which featured two lay litigants and no barristers, and no particular evidence of a coherent legal strategy, that doesn’t mean that a properly made case would not get a hearing, or succeed.

Second, people who oppose the lockdown and think it is unconstitutional should be grateful to, rather than angry at, Justice Meenan for not hearing this case, because it would not have succeeded for the reasons outlined. They’d be better off finding a good lawyer and identifying actual reasons why the legislation is unconstitutional.

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