This notion of deeming private business “essential” or not is probably the biggest challenge and constitutionally problematic issue in state and local orders. This is arbitrary, and it’s highly doubtful this action would pass constitutional muster. While government has inherent police power via the 10th Amendment, private actors have the right to equal protection via the 14th Amendment.
Government can determine essential versus non-essential workers within its own employees in the context of a shutdown, which we saw as recently as last year. But there is no constitutional authority on the federal or state level that allows government to subjectively determine who and what is essential for private workers, including during a national health emergency. States are issuing orders without providing complete criteria for how they are making these determinations. There is arguably no metric that could possibly satisfy constitutional scrutiny.
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This notion of deeming private business “essential” or not is probably the biggest challenge and constitutionally problematic issue in state and local orders. This is arbitrary, and it’s highly doubtful this action would pass constitutional muster. While government has inherent police power via the 10th Amendment, private actors have the right to equal protection via the 14th Amendment.
>
Government can determine essential versus non-essential workers within its own employees in the context of a shutdown, which we saw as recently as last year. But there is no constitutional authority on the federal or state level that allows government to subjectively determine who and what is essential for private workers, including during a national health emergency. States are issuing orders without providing complete criteria for how they are making these determinations. There is arguably no metric that could possibly satisfy constitutional scrutiny.
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