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Part 9: COVID-19, lock down and shelter in place

Lock down. Shelter in place. What powers does a governor have to lock down and require you to stay at home? Can the police arrest you? What is the punishment for violating a lock down?

When the lock down order is advisory, there is not much police can do about enforcement. About a week ago someone told me that police were called to a park where there were more than 10 individuals engaging in activities together. The individuals were not complying with the social distancing advice and many people in the neighborhood called police to report them. When the police showed up they did not what to do because there is no lock down in effect.

When you hear the press conferences of Governor Baker and Mayor Walsh you hear them strongly urge people to stay at home. They give guidelines that people should not be playing sports or be near one another. Boston has gone so far as to zip tie basketball hoops to discourage people. When they talk about enforcement, they tend to say that people are not going to be arrested and they do not want to fine individuals breaking the social distancing guidelines.

Governor Baker's strategy promoting social responsibility and self enforcement is very different than Governor Raimondo of Rhode Island's strategy. Governor Raimondo has set up road blocks with the National Guard stopping and questioning out of state cars. She has also ordered National Guard members to go door to door looking for out of state car license plates and ordering individuals to quarantine for 14 days.

Is a lock down constitutional?

A governor has certain executive powers. A governor's executive power is increased during state of emergencies. This allows a governor to take quick action to deal with a crisis. With the COVID-19 pandemic many states have declared a state of emergency. A governor in these situations can use their power to make certain declarations and orders. However, the governor's powers are not absolute even in times of crisis. The executive branch is supposed to be balanced by the judiciary and legislative branches. We all know this when we learned it in school.

The reality is the legislative branch consist of many law makers and tend to move very slowly. Combined with the fact that many courts remain closed for business, there really is not a way to check and balance a governor's power at this point. Sure you can file a law suit, but by the time the suit in heard in court the crisis may be over and it may be moot in your life. As of right now, governors have not started arresting people for violating stay at home orders. If that changes the constitutional balance may change quickly.

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