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2020 Survivor’s Guide: Postponing the Election is Not a Thing

Let’s talk about holding an election during a pandemic involving an airborne virus.  It is clearly not an ideal thing to do.   But, postponing the election is also not a thing that the President can actually do either. 

Let me break it down. 

THE DATE OF THE ELECTION

Article II, section 1 of the United States Constitution gives Congress the right to set the date for the Presidential election. 

Fun fact: The election used to take place at different times in different states.  Most people agreed November was an ideal time because it was after the harvest.  And most people liked the idea of having it on a Tuesday because Sunday was a day for church, Monday was a day to tie up the horse and ride to the polls, and Tuesdays were apparently a day where people did not do anything.  But other than that, the States held their elections when it worked for them. 

When the telegraph was invented and communication became much faster, however, Congress decided the elections should be held on the same day to avoid states with earlier elections influencing the outcome of states with later elections. 

So, in 1845, Congress passed a law designating the first Tuesday of November as Election Day.  That law remains unchanged to this day.

BUT WAIT, CAN’T THE PRESIDENT CHANGE THE LAW?

No. 

You are thinking of a thing called an “executive order.”  Executive orders are orders issued by the President on specific national issues which direct how that issue is to be handled. 

A President’s power to issue executive orders must come from either Congress or the Constitution itself.  Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952).  If Congress has not passed a statute that allows the President to change the election date, he can only issue an executive order postponing it if the Constitution allows him to do so.  But, the Constitution only allows Congress and not the President to set the date of the election.  U.S. Const., Art. II, cl. 1. 

SO, THE ELECTION COULD NEVER BE POSTPONED?

The election could be postponed if Congress agreed to change the election date.  However, Congress is currently divided and it is unlikely that a proposal to change an election date that is backed by a Republican administration would ever get approved by the Democratic majority of the House of Representatives. 

2020 SURVIVOR’S TIP

The election is happening November 3, 2020.  Vote early or by mail if you can.  If not, wear a mask, wash your hands and be kind to one another. 

2020 Survivor’s Guide: The Constitutionality of Quarantine Business Closures

A lifetime ago (120 days to be exact), I witnessed Disneyland go dark the day after we arrived to celebrate my daughter’s fifth birthday.  Within a week, businesses were shuttered, schools were closed, millions were out of work, and the entire world was united in a fight against an invisible enemy:  COVID-19. 

When governors across the country shuttered businesses overnight, people immediately questioned: Is that constitutional? The answer: Probably-ish.

EARLY QUARANTINE LAW OPINIONS

120 years ago, quarantines were a fact of life in America. Without modern medicine at our disposal, the only option localities had when faced with outbreaks of measles, rubella, cholera and typhoid (etc.) was to shutter businesses, close schools and order Americans to stay home. While these were primarily occurring only on small, local levels by town, province or city, the Spanish Flu pandemic saw a nation-wide quarantine similar to what we are experiencing today.

These quarantine laws, which directly affected businesses, were upheld as constitutional. In Compagnie Francaise de Navigation a Vapeur v. Board of Health of State of Louisiania, the 1899 U.S. Supreme Court upheld Louisiana’s ban on the entry of a vessel into New Orleans while the city was declared under quarantine despite the fact that ban directly affected interstate commerce.  186 U.S. 380, 387 (1899).  The Court held:

That from an early day the power of the states to enact and enforce quarantine laws for the safety and the protection of the health of their inhabitants has been recognized by Congress, is beyond question.  That until Congress has exercised its power on the subject, such state quarantine laws and state laws for the purposes of preventing, eradicating, or controlling the spread of contagious or infectious diseases are not repugnant to the Constitution of the United States, although their operation affects interstate or foreign commerce, is not an open question.

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Thus, states could (and did) regularly enact quarantine laws.

COVID-19 AND MODERN QUARANTINE

Under the Compagnie Francaise line of authority, the question as to whether a state government can constitutionally impose quarantine depends on how the governor went about doing it. Compagnie Francaise makes it clear that states can enact and enforce reasonable quarantine laws under their police power.

The police power of a state is reserved to its Legislature, not its executive branch.  However, the Legislature has the power to delegate its authority to the executive branch. In Nevada, the Legislature did that in NRS 414.070.   Governor Sisolak relied upon NRS 414.070 to issue his COVID-19 directives in Nevada. As long as the governor acts within the bounds of the authority delegated to them by the legislature, their acts are presumably constitutional.

So, if your argument is that the governor, in general, cannot impose these laws, you lose. Under Compagnie Francaise and its progeny, these laws are generally constitutional (or, as we lawyers say, “facially valid”).

But if your argument is that the quarantine laws, as they apply specifically to you, are unconstitutional, you might have a valid argument. Referred to by lawyers as an “as applied” challenge, these type of claims look at otherwise constitutional laws and find that the manner in which they are applied is nevertheless discriminatory or unconstitutional. For example, when Nevada initially entered Phase 2, you could get your nails or hair done, but you could not get a facial. Yet, hair salons, nail salons and aesthetic salons operate in virtually identical manners with the same or similar amounts of exposure or contact with others. There was no reason why a facial salon should remain shuttered when a hair salon could open. This is an example of a case that may have had a valid “as applied” challenge. These types of claims arise on a case-by-case basis, and are heavily fact specific. If you think your grievance falls within this category, you should consult an attorney.

2020 SURVIVAL TIP

Stop arguing that quarantine laws closing businesses are, in general, unconstitutional. That is a dumb argument. However, if you believe that these laws, as applied to your business, might unfairly impact or discriminate against you, consult an attorney.