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State and local governments have far greater abilities to issue orders like this than the federal government. What, exactly, is unconstitutional about a city is

State and local governments have far greater abilities to issue orders like this than the federal government. What, exactly, is unconstitutional about a city issuing an order that revokes the ability of a business to operate due to a health emergency?

throwaway0a5e 6y ago
On the surface there's not much constitutional protection for engaging in business but there would be some serious schadenfreude if Wickard v. Filburn showed up to defend individuals from state prosecution for once. edit: To expand on this, for an individual's right to do something to be protected from the states that right must be protected under the 14th amendment. Over the years the court has found that the 1st, 2nd, 4th, etc, basically all the big stuff is protected from state infringement under the 14th. In addition to this, for the incorporation of a right to under the 14th to have any teeth to this the court must have ruled that state regulation must pass strict scrutiny to be constitutional, in layman's terms it needs to be limited in scope to the bare minimum and there as to be a damn good reason. Unless you're willing to play some serious mental gymnastics there isn't any real combination of constitutionally protected rights and court rulings that restrict infringement on those rights that result in the ability to run a nail salon or other "clearly not essential" type business. Basically, no the constitution doesn't protect you from this. That's where civil liberties advocates old nemesis comes in. In Wickard v. Filburn the court ruled that even non-business activity that is fully contained within a state is subject to federal regulation under the interstate commerce clause because it affects market conditions if everyone does it. If this sounds like an end run around the constitution it's because it is. Normally you see this ruling used (I'd love to say "abused" but is it really abuse when it's functioning as intended?) to micro manage how states regulate businesses or go over states' heads and regulate them directly. So it would be a more or less complete 180 to see the ruling used to justify the federal government not only prevent states from regulating but allow people to go about their business without being stopped by state regulation. I think this is highly unlikely but a) it's fun to speculate and b) if the rest of 2020 has been any indication, anything is possible. Also, it should go without saying but this analysis is not exhaustive, there would be more to the issue than this.
- the_watcher 6y ago
  > there would be some serious schadenfreude if Wickard v. Filburn showed up to defend individuals from state prosecution for once. Could not agree more about this.
- dehrmann 6y ago
  Dumb question: what did Wickard add to the interpretation of the commerce clause that wasn't already pretty obvious after Houston East & West Texas Railway Co. v. US?
  - throwaway0a5e 6y ago
    Basically the intrastate effect of Houston East & West Texas Railway Co. v. US was said to be constitutional as a byproduct of regulating interstate commerce. Importantly the former is regulating commercial activity whereas Wickard v. Filburn expands the scope of the commerce clause to purely intrastate non-commercial activity that don't affect interstate commerce and would only affect interstate commerce if everyone did it.

throwaway0a5e 6y ago

On the surface there's not much constitutional protection for engaging in business but there would be some serious schadenfreude if Wickard v. Filburn showed up to defend individuals from state prosecution for once. edit: To expand on this, for an individual's right to do something to be protected from the states that right must be protected under the 14th amendment. Over the years the court has found that the 1st, 2nd, 4th, etc, basically all the big stuff is protected from state infringement under the 14th. In addition to this, for the incorporation of a right to under the 14th to have any teeth to this the court must have ruled that state regulation must pass strict scrutiny to be constitutional, in layman's terms it needs to be limited in scope to the bare minimum and there as to be a damn good reason. Unless you're willing to play some serious mental gymnastics there isn't any real combination of constitutionally protected rights and court rulings that restrict infringement on those rights that result in the ability to run a nail salon or other "clearly not essential" type business. Basically, no the constitution doesn't protect you from this. That's where civil liberties advocates old nemesis comes in. In Wickard v. Filburn the court ruled that even non-business activity that is fully contained within a state is subject to federal regulation under the interstate commerce clause because it affects market conditions if everyone does it. If this sounds like an end run around the constitution it's because it is. Normally you see this ruling used (I'd love to say "abused" but is it really abuse when it's functioning as intended?) to micro manage how states regulate businesses or go over states' heads and regulate them directly. So it would be a more or less complete 180 to see the ruling used to justify the federal government not only prevent states from regulating but allow people to go about their business without being stopped by state regulation. I think this is highly unlikely but a) it's fun to speculate and b) if the rest of 2020 has been any indication, anything is possible. Also, it should go without saying but this analysis is not exhaustive, there would be more to the issue than this.

the_watcher 6y ago
> there would be some serious schadenfreude if Wickard v. Filburn showed up to defend individuals from state prosecution for once. Could not agree more about this.
dehrmann 6y ago
Dumb question: what did Wickard add to the interpretation of the commerce clause that wasn't already pretty obvious after Houston East & West Texas Railway Co. v. US?
- throwaway0a5e 6y ago
  Basically the intrastate effect of Houston East & West Texas Railway Co. v. US was said to be constitutional as a byproduct of regulating interstate commerce. Importantly the former is regulating commercial activity whereas Wickard v. Filburn expands the scope of the commerce clause to purely intrastate non-commercial activity that don't affect interstate commerce and would only affect interstate commerce if everyone did it.