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Downtown stores closing in March as pandemic hit.
When an emergency hits, it’s not always immediately clear which branch of government has which supreme regulatory powers — by the design of the framers of the U.S. Constitution.
Kimberly West-Faulon, constitutional law professor at Loyola Marymount University, offered that perspective Wednesday at a “constitutional cafe” in town.
It was the first of a series of constitutional sessions scheduled this year by the International Festival of Arts & Ideas. The original plan was to hold these sessions at local coffeehouses, with citizens and experts reexamining the constitution in the context of modern-day America.
Then came the Covid-19 pandemic. That moved the events online.
It also gave Wednesday’s event an immediate real-world context: How officials at different levels of government responded to the pandemic.
Before the presentation began, attendees shared what they hoped to take away from the hour-long session using Zoom’s chat feature. Many voiced interest in learning about the interpretation and limits of the Constitution in relation to government action and inaction during the coronavirus pandemic. Several participants work in government, and hoped to learn how to better protect and serve their communities.
The conversation, led by West-Faulcon and New Haven Mayor Justin Elicker, centered around tensions between constitutional liberties and government intervention, as well as between government intervention at the federal versus the local levels.
West-Faulcon provided background on the framing of the Constitution, emphasizing the inclusion of checks and balances on the federal government to prevent tyranny. She highlighted the role of the federal government in protecting the population, with a “delicate balance” struck between measures that protect public safety and measures that infringe on constitutional liberties.
During the coronavirus pandemic, government-imposed lockdowns, social distancing guidelines, and other mandates, including required face coverings and bans on public gatherings, have navigated this precarious balance. Some claimed such regulation restrict essential freedoms; Elicker and the governor prevailed in one Constitutional challenge in federal court over their orders.
West-Faulcon said the Constitution generally supports executive control in times of emergency, especially during a pandemic, but she expressed concerns over too much control in the hands of an irresponsible leader. She said she is “terrified” that President Trump will “blow up” the country’s constitutional structure. Regarding Trump’s response to the pandemic, she criticized his underuse of federal power, citing his delayed invoking of the Defense Production Act.
Drawing on his own political experience, Elicker echoed the challenge of gauging appropriate government intervention, describing the pandemic as a “test for every level of government.”
On March 15, Mayor Elicker declared a State of Emergency for the city of New Haven, allowing him to enact rules without undergoing the usual legislative approval process, which he described as “lively.” Elicker expressed support for the legal underpinnings that allowed him to take emergency authority, saying the broader power allowed for expanded and expedited measures to protect the city population.
West-Faulcon confirmed that legally, local officials are given “general police power” to protect the “health, safety, and welfare” of their constituencies during times of crisis, a power that influences citizens’ daily lives much more directly than federal government mandates. She called the leadership of mayors and governors “a blessing” during the pandemic.
Participants requested clarity on the “intricate puzzle” of federal-level and state-level regulation during the pandemic, as attendee Thomas Griggs termed it.
West-Faulcon described the web of federal, state, and local mandates as “intentionally messy.” Elicker agreed that such ambiguity lends the system flexibility and a “resiliency,” though it can also pose a challenge to coordinated and collective actions, which are especially necessary to stop the spread of the coronavirus.
Residents expressed their gratitude to Elicker and West-Faulcon for leading the event, with many requesting to enroll in West-Faulcon’s constitutional law course. Moderator Eric Rey admitted there was “no way to do this topic justice in an hour.”
Elizabeth Nearing, curator of programming for the festival, encouraged participants to attend next week’s Constitutional Cafe, which will discuss the constitutional limits of the use of force by police.
