Safety versus liberty: Constitutional freedoms tempered by COVID-19 crisis

  • Robert Thomas

When a constitutional lawyer says the Hawaii government is within its rights to restrict basic freedoms during the coronavirus pandemic, you can probably take that to the bank.

Honolulu attorney Robert Thomas, a lawyer who specializes in the Fifth Amendment, ensuring private property owners get their just compensation after the government takes property from them, was featured in a Tuesday webinar sponsored by a constitutional rights think tank.

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Thomas cited legal cases in Hawaii and on the mainland where courts have upheld government restrictions during times of emergencies, from the burning of Honolulu’s Chinatown during the bubonic plague to the quarantining of Hansen’s disease victims. Thomas focused on “the practical realities” of how he expects courts to rule, based on that history, not on what might be considered right or wrong or good or bad public policy.

The webinar comes as more Hawaii residents are chafing under stay-at-home restrictions and losing their jobs as nonessential businesses are closed. In addition to frustration with cabin fever experienced by residents, businesses are losing big money, landlords worry about paying their mortgages when tenants can’t pay their rent and everyone hopes to get bailed out by the government.

Panos Prevedouros, a civil engineering professor and unsuccessful candidate for Honolulu mayor, is one of the most vocal pushing for loosening of restrictions.

“Hawaii hardly has a COVID-19 problem. Our hospitals are not busy. The calls for new curfews, more mask usage and policing beaches with drones are verging on the ridiculous,” he said in a Monday blog posting. “Local politicians are on an one-upmanship game for restrictions, instead of getting busy with charting a path for the long-term control of COVID-19 cases, and actions to recover our economy.”

Whether courts will rule against government remains to be seen, and if it does happen, it will happen after, not during, the current crisis, Thomas said.

Lawsuits filed in other U.S. courts based on COVID-19 stay-at-home requirements, curfews and other social distancing measures have gained little, if any traction, he said. So far, no such lawsuits have been filed in Hawaii, he said.

“Courts are going to be looking at any claims like this with a skeptical eye,” Thomas said. “Even on the most normal of days courts are highly deferential to the government.”

As long as government action pertains to everyone, and not just select groups, they won’t be seen as unconstitutional, he said. But compensation could still be coming if government actions “take” a right such as a property right.

For example, a moratorium on evictions may not be seen as a unconstitutional taking because landlords will eventually get their rent, while a rent holiday, where rents are forgiven, would likely be reimbursable by the government if the government sanctioned it, he said.

Gov. David Ige said in a Tuesday news conference he was looking into some kind of tenant relief.

“We’re looking at a supplemental proclamation,” Ige said of potential evictions. “Seeing whether I need to put additional protections in as we speak.”

Thomas said it’s important for the public to “remain vigilant” and be ready to claim their rights back once the crisis is over.

“The most intrusive measures are adopted under the guise of emergency,” he said. “Make sure what were adopted as temporary restrictions don’t mature into permanent restrictions.”

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The webinar was sponsored by the Grassroot Institute, a Honolulu-based nonprofit, public policy think tank that “seeks to educate people about the values of individual liberty, economic freedom and accountable government,” according to its website.

“We are living in extraordinary times,” said Grassroot Institute president/CEO Kelii Akina. He said the government is focusing on the health and safety of the community, but at the same time, “far less attention has been paid to the curtailment of our civil liberties.“

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