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Some far-right business owners are arguing that they have a ‘constitutional right’ to openly defy stay-at-home orders, but constitutional scholars disagree: report

Some far-right business owners are arguing that they have a ‘constitutional right’ to openly defy stay-at-home orders, but constitutional scholars disagree: report
Credit: Lorie Shaull

In different parts of the United States, some right-wing owners of small businesses have been openly defying social distancing measures and stay-at-home orders and asserting that they have a constitutional “right to work.” Alex Norcia discusses their actions in an article for Vice this week, explaining why constitutional scholars believe that — in light of the coronavirus crisis — they are wrong.


Norcia cites Jacob Lewis, who owns a gym in Victorville, California, as an example of a business owner who is openly defying the stay-at-home order in his state. Democratic Gov. Gavin Newsom has declared gyms to be the type of non-essential business that should remain closed in California until he considers it safe to reopen. But Lewis disagrees, insisting that it is his “constitutional right” to keep his gym open. To Lewis, openly defying Newsom’s stay-at-home order is a political act.

“Among Americans of a certain conservative bent,” Norcia reports, “Lewis is one of many new faces of a growing movement — one in which rebel businesses are recklessly reopening against the wishes of politicians, scientists, public-health officials, and sometimes even their own customers and employees. Despite frequent warnings from experts that the country doesn’t have the testing capacity to ease shelter-in-place restrictions yet, more and more non-essential business owners have started defying their states’ stay-at-home orders by reopening — a move that threatens to increase the country’s COVID-19 death toll.”

Norcia reports that in Colorado, some restaurant owners who were defying the state’s stay-at-home order tweeted, “We are standing for America, small businesses, the Constitution and against the overreach of our governor in Colorado.” And anti-shutdown business owners with a similar mindset, Norcia adds, have been speaking out in states ranging from Arizona to Minnesota.

But James Hodge, director of the Center for Public Health Law and Policy at Arizona State University, doesn’t believe that they have a constitutional right to endanger the health of their customers. Hodge told Vice, “What the Constitution preserves is the government’s ability to protect public health. It’s life or death. There’s a compelling interest to save lives.”

In Minnesota, a coalition of 15 small businesses that calls itself the Free Minnesota Small Business Coalition, has filed a lawsuit challenging Gov. Tim Waltz’s stay-at-home order — arguing that it's unconstitutional for government to favor one type of business over another. Steven Collis, a researcher at Stanford’s Constitutional Law Center, told Vice that they might be able to make a 14th Amendment argument — although he doubts it.

According to Norcia, “Collis said that since states have separated businesses into essential and non-essential businesses, it was fair to wonder why certain companies received one designation or the other, but added that the argument wouldn’t likely hold up in any court because the government could produce justifiable reasons for doing so. You don’t need to get your haircut, say, but you need to buy food.”

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