Lujan Grisham, Coronavirus, & The Constitution

In continuing the shutdown long past the point where she could even attempt to demonstrate a compelling state interest, Governor Lujan Grisham has shredded the First, Second, Fourth, Fifth, and Fourteenth Amendments as well as the Contracts Clause of the Constitution. 

It is somewhat ironic that, in the race for the United States Senate, one candidate gave a keynote supporting climate change that he’s now trying to hide. I’m standing here, in plain sight, giving a keynote address on fundamental rights enshrined in the Constitution, and I want everyone in New Mexico to see it.

What’s important to note about our founding documents and the Bill of Rights is this: they don’t actually grant anybody any rights, but rather, prohibit the federal government from infringing on fundamental rights that are natural and God-given, pre-existing government itself. 

In fact, the very reason government exists is to protect the inalienable rights of citizens to “life, liberty, and property.” 

“To secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”  

Justice Scalia nailed it: ‘The Constitution is not a living organism. It’s a legal document, and it says what it says and doesn’t say what it doesn’t say.’

Clearly, the founding fathers understood that fundamental rights matter. Our Governor and Attorney General seem to have forgotten that principle. Since they both went to law school, I guess they must have slept through Constitutional Law.

The original Bill of Rights applied only to the Federal Government but was made applicable to the states under the Fourteenth Amendment.

Section 1 reads as follows:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Under the 14th Amendment, States must provide both Due Process and Equal Protection, and they must adhere to the mandates of the original Bill of Rights.

But before we go through the list of fundamental rights that have been shredded by the unconstitutional actions of Governor Lujan Grisham and supported by Attorney General Hector Balderas, I want to discuss why their actions should be viewed as unconstitutional.

Whenever fundamental rights are impaired, and they sometimes must be balanced against other considerations, the predominant standard used to evaluate state action is called the “strict scrutiny” test. 

To withstand strict scrutiny: 

  1. There must be a "compelling state interest" for the law or regulation;
  2. It must be "narrowly tailored" towards achieving this compelling purpose;
  3. It must use the "least restrictive means" to achieve that purpose. 

Just this week, the Supreme Court of the United States demanded that Pennsylvania justify its shutdown orders, which are very similar to what we face here in New Mexico. I predict that much of the governmental overreach will be struck down in the near future.

While a public health emergency can be the basis for a compelling state interest, the emerging science about the Wuhan Coronavirus makes the case less and less compelling. The shutdown order is clearly overbroad, is the opposite of “narrowly tailored,” and Governor Lujan Grisham is certainly not using the “least restrictive means.”

Over the past few weeks, it has become abundantly clear that she is motivated by power and control rather than a justifiable concern for public health.

So what fundamental rights have been impaired by New Mexico’s shutdown?

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

On Easter Saturday, the Governor told us not to go to church. I defied the governor and went to church, and I did so with responsible social distancing because I sat in my truck in the parking lot and listened to the service on the radio.

We are peaceably assembling here today. She doesn’t want us to do that, even if we can make our own decisions about masks and social distancing.

And the folks in Grants, NM apparently were given no opportunity to petition for redress of their grievances. They were just slapped with tens of thousands of dollars in fines, even when their actions complied with the letter of the governor’s order. I guess selling guns makes you non-essential in her mind.

Which brings us to the Second Amendment.

Clearly the right to defend ourselves is a God-given right. Justice Scalia identified it as a pre-political right. And we all know that the only way you stop a bad guy with a gun is with a good guy with a gun.

At the national level, President Trump made it clear that retail firearms sales are essential, which recognizes that “shall not be infringed” means exactly that.

But this Governor and Attorney General Hector Balderas are going after all gun stores, including those that supply law enforcement or provide essential facilities such as shooting ranges.

With her unconstitutional shutdown order, the Governor has also violated both the due process and the takings clauses of the Fifth Amendment, which together state that “No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Interestingly, according to the Supreme Court, the broader the shutdown, the less likely it is to constitute a regulatory taking. In a case called Penn Central, the Court noted that the purpose of the Takings Clause is to “prevent the government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” So, the inquiry will need to examine how the Governor has determined between essential and non-essential businesses. If those distinctions have been drawn arbitrarily or unreasonably, government-mandated shutdowns can result in regulatory takings that violate the Fifth Amendment.

If the governor cannot make the case that furniture sold at Walmart is somehow essential when furniture sold by a mom and pop store isn’t, her order should be declared unconstitutional.

Now, I don’t want to unfairly target Walmart. I want Walmarts to be open, but I also want the mom and pop stores to be open, particularly since they are more vulnerable to the economic impact of this unconstitutional shutdown.

As I was preparing these remarks, I happened across an excellent analysis by the lawyers at Gibson Dunn. Their analysis noted that, 

“Given the nature of the COVID-19 pandemic and the need for government action to combat it, the government will argue that a government-imposed shutdown should be presumed reasonable as a lawful and valid exercise of police powers. But those powers are not without limits. A government’s exercise of its police powers must be valid and “reasonably necessary for the accomplishment of the government’s purpose.” Goldblatt v. Town of Hempstead, 369 U.S. 590, 595 (1962). To evaluate the reasonableness of a regulation, courts will look, for example, to “the nature of the menace against which [the regulation] will protect, the availability and effectiveness of other less drastic protective steps, and the loss which [the property owner] will suffer from the imposition of the ordinance.” 596. This fact-intensive inquiry will vary based on the scope and breadth of the COVID-19 regulations, the infection rate in the area at issue, the type of businesses subject to closure, the foreseeable risks that those business[es] could spread COVID-19, and the specific losses suffered.

"The government would likely assert the defense of public necessity. This defense requires the government to show: (1) an actual emergency, (2) imminent danger, and (3) actual necessity of government action. See TrinCo Inv. Co. v. United States, 722 F.3d 1375, 1377–79 (Fed. Cir. 2013). This defense is a corollary to the government’s ability to abate nuisances without implicating the Takings Clause. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1029 n.16 (1992); see also Miller v. Schoene, 276 U.S. 272 (1928) (holding compensation not required for destruction of privately owned trees to prevent spread of disease to other nearby trees). A bald claim of public necessity, however, may not suffice. In TrinCo Investment Co., for example, the U.S. Forest Service intentionally lit fires directly on and adjacent to the plaintiff’s properties, destroying nearly 2000 acres of merchantable timber. The government argued that its actions, undertaken to manage existing wildfires, were protected under the “doctrine of necessity.” On appeal from dismissal by the Court of Claims, the Federal Circuit reversed because there were “legitimate questions as to imminence, necessity, and emergency,” and “[w]hile there is no doubt that there was a fire, there is also no doubt that at the time [Plaintiff’s] property was burned, only approximately 2% of the 2.1 million-acre national forest was in flames.” 722 F.3d at 1380."

The Supreme Court may use a lesser level of analysis than strict scrutiny for Due Process and Equal Protection claims, which makes it harder to invalidate state action, but if someone can successfully argue that New Mexico’s shutdown order places a unique burden on an industry or business sector without a clear justification, the Due Process clauses in both the Fifth Amendment and Fourteenth Amendment, as well as the Fourteenth Amendment’s Equal Protection clause, may provide viable Constitutional claims.

Outside of the Bill of Rights, the shutdown order also potentially runs afoul of The Contracts Clause from Article I, Section 10. Clause 1, states “No state shall . . . pass any . . . Law impairing the Obligation of Contracts.” Again, referencing the Gibson Dunn memo,

“Contracts Clause challenges are subject to the Supreme Court’s two-step framework. At the first step, a business challenging a state law must show that the law has “operated as a substantial impairment of a contractual relationship.” Sveen v. Melin, 138 S. Ct. 1815, 1821 (2018). Under this step, courts ask “whether there is a contractual relationship, whether a change in law impairs that contractual relationship, and whether the impairment is substantial.” Gen. Motors Corp. v. Romein, 503 U.S. 181, 186 (1992). Whether an impairment is substantial turns on several factors, including “the extent to which the law undermines the contractual bargain, interferes with a party’s reasonable expectations, and prevents the party from safeguarding or reinstating his rights.” Sveen, 138 S. Ct. at 1822. Courts are less willing to find a substantial impairment if “the industry the complaining party has entered has been regulated in the past.” Energy Reserves Grp., Inc. v. Kan. Power & Light Co., 459 U.S. 400, 411 (1983).

"If a business demonstrates a substantial impairment, courts will proceed to the second step, which asks whether the law is “drawn in an appropriate and reasonable way to advance a significant and legitimate public purpose.” Sveen, 138 S. Ct. at 1822. Significant and legitimate public purposes include “the remedying of a broad and general social or economic problem.” Energy Res. Grp., 459 U.S. at 411–12. And in determining whether an impairment is reasonably and appropriately drawn, courts “defer to legislative judgment as to the necessity and reasonableness of a particular measure.” Id.

"The Contracts Clause offers businesses a potential avenue for challenging federal or state COVID-19 laws that interfere in their ongoing contractual relationships, particularly for any industries required to fulfill obligations nowhere specified in (or even specifically excluded from) carefully negotiated agreements. See Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 245–47 (1978) (holding law requiring employer to make additional payments operated as substantial impairment of pension plan). These businesses have colorable arguments that shifting to them the financial burdens of the pandemic’s economic interruption is not an appropriate or reasonable means of responding to the crisis."

Thus, it would seem that in continuing the shutdown long past the point where she could even attempt to demonstrate a compelling state interest, the Governor has shredded the First, Second, Fourth, Fifth, and Fourteenth Amendments as well as the Contracts Clause of the Constitution.

I would be remiss, however, if I didn’t give a shout out to the one group that is standing up for our fundamental constitutional rights, and that is our County Sheriffs.

I’m working on a separate editorial on the constitutional role, and the pre-constitutional powers, of our Sheriffs and how this governor’s actions and those of the Attorney General have put New Mexico on the edge of a constitutional crisis.

Ladies and Gentlemen, Fundamental Rights Matter. Thank you for standing up for them!