Opening Schools in the Fall and Big V Constitutional Liberty Issues

I agree that the linked piece regarding the perils of returning to school [specifically college and so forth but the concerns are largely applicable to lower grades] in the fall and the conservative views on certain subjects helps provide common ground.  In the comments, it was noted that special concerns should be given to return of schoolchildren.  I agree since we are dealing not just with the needs of parents but children, who have more of a need for education at that age for different reasons.  Relatedly, though the complaints at times seem a bit exaggerated, there are grounds to worry about Zoom teaching:

For reasons I describe here, in-person teaching has important advantages over online instruction. Among other things, in-person teaching makes it easier for faculty to make eye contact and otherwise gauge the reactions of students, and to make sure that the latter are "getting" what the instructor is saying. Being in class also makes it easier for students to stay focused and effectively interact with each other.

A Trump supporter complained about "moral panic" and "overreaction" of what something (other than New York and maybe a few bad apples) was basically "a bad flu season." Mark Field in a later comment noted something like 12x (in May) normal net deaths is a tad worse than that.  Also, the person failed to (as is his wont) be evenhanded both selectively citing information and in apportioning blame. He alleges there is "Trump Law" that selectively targets Trump.  I think he practices the reverse.  Anyway, as I note there, such complaints are overblown and 100K (so far) etc. if anything warranted more action though the various things done including social distancing and isolation followed standard protocols.

Another person went back/forth with someone even less worthy of reply (though for years people have, with a mixture of vitriol and facts) regarding how government regulation here overlapped with traditional methods. The usual cases here involved regulating transit points, particularly quarantining or blocking entry totally of ships and people.  The broad sweep of such principles (see New York v. Miln) was limited somewhat in Edwards v. California, which barred blocking entry merely to keep out paupers.  Nonetheless, the basic principle appears to be good law.

There is, of course, a sphere within which the individual may assert the supremacy of his own will and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution. But it is equally true that in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.

Not that we have many recent precedents that appear on directly on point. If so, it is unclear why Jacobson v. Massachusetts (1905) is quoted so much.  That case involved a state compulsory vaccination ($5 fine, which was notable but not confiscatory at that point) that was used during a smallpox epidemic. And, there was a process set up to determine if the vaccination was necessary, which was met there. Finally, the opinion left open a special case where the vaccination would case special harm to the person in question.  The link shows that there was some allegation of particular harm, but apparently was not strong enough for this exception.  Likewise, the law was not applied in an "unreasonable, arbitrary or oppressive manner."  Note two justices did dissent.

So, it was not a compulsory vaccination of a baby, let's say, as an absolute rule.  The opinion has various quotable language such as how the minority protected by a locality could not in such cases allege a right to be excepted from a general law passed in protection of the community.  In Prince v. Massachusetts, a 1940s case allowing applying child labor laws even if the behavior is religious in nature, the case was cited to show general applicable laws are valid in such a case.  The cases that grant exemptions to my knowledge was in applying statutory exemptions and maybe RFRA type laws. That question is still somewhat open. 

And, in Planned Parenthood v. Casey, the law still was cited in good law, but that the general state interest in protecting life was not strong enough to meet the test to justify a general abortion ban. This would be a useful citation against various attempts to severely limit abortion rights without good cause during the pandemic.  As noted here, in general, modern day views of liberty would in various cases be more stringent than in 1905.  It is unclear, putting aside ability to send children to school or something, if a compulsory vaccination program of adults would be allowable. Various cases against compulsory medical procedures can be cited. OTOH, one can be detained in a mental institution if one endangers others.

Though dealing with the breadth of action present today has no exact recent precedent, over the years there were general principles that could be applied.  A prime case here would be the well being of those in state run institutions, which includes certain due process protections for safe conduct.  Various cases, imperfectly applied in recent days, also protect voting rights and guide how the laws should be applied in this case.  Broad executive power should be carefully analyzed, but emergency situations repeatedly have been shown to justify it, especially if the legislature provides guidelines.  Religion is of special concern but general rules still apply.  Emergencies do not provide "anything goes," but that hasn't been the case now, even in places like New York City.

A value of our system of law is the ability to reason and apply, a form of common law within constitutional and statutory guidelines.  A final word can be said about an interesting precedent, noting that new times bring new practices, so I'm not saying it just means we can apply what they did. But, it still is helpful and informative. I speak of the 1793 yellow fever epidemic, yellow fever being what led to a few cases of the Supreme Court (and lower court judges in some cases) closing shop temporarily. Over the years, plague, yellow fever and related instances led to broad social and legal implications that do provide some help to our current affair.

Various things stand out in the discussion, putting aside disputes (at times having a partisan tinge) over proper medical techniques. The government had the power to close ports, block scheduled coach schedules, require private religious burials (and hold church bells) and had special cleaning regimes put in place.  Quarantines were enforced including limiting the movement of refugees.  And, in general, limits on normal business were allowed.  This is a time with less population and government in general. Overall, though it's a fool's game to rely on this in many cases, a conservative legal mind could find the current methods "originalist."

A basic thing in my own comments in the opening link is care. It is unclear what will happen and given the scope of the harm to life and well being, we should be careful.  This can be difficult -- it seems that the New York City schools should have been closed sooner, but that had a range of difficulties that led me to be wary about it early March.  And, there is a national need here, as noted by one who cited how the mismanaged travel ban probably worsened the situation.  It's May, so it's unclear to me what exactly should be done regarding colleges in September. The article is helpful as we figure how to handle this, any solution a balance of costs/benefits.

This is will also apply to sports -- Gov. Cuomo has reportedly welcomed the opening of training facilities and efforts are being made to do so also in Florida regarding the Mets.  This sign of  restarting of Spring Training suggests that it is more likely than before that there will be a baseball season of some sort perhaps starting in July.  More so a football season. I'm wary about the scope necessary to do this, including the more close nature of football (with more people close together on the field).

But, we shall see.

===

* I think this should be separated as a bit of a footnote. 

The Trump supporter I clashed with tends to latch on to certain things, one thing there being nursing homes.  It is hard to keep up with all these details, so it is best to try to keep on track with general principles. Generally, it is logical that many would die at nursing homes given that older people are especially at risk here and they would be a logical place where at risk people would be or would be place.  There still are about 70K who did not die there.

The implication was that somehow people were wrongly sent to nursing homes and this negligently infected people there. But, nursing homes would seem like a logical place to send people to be cared for though ideally we would have independent areas, perhaps, set up as have been to isolate people without the means to do so on their own .  The person in question argued in a previous comment that ventilators should be distributed based on means to pay, so he might not be a good advocate here. It seems on a basic level, see the numbers, more dust.

And, we have this:

The Centers for Medicare and Medicaid Services issued a memorandum on March 13 stating, in part, "Nursing homes should admit any individuals that they would normally admit to their facility, including individuals from hospitals where a case of COVID-19 was/is present."

I didn't look that up at time but thus what is the argument? Many people died at nursing homes?  What does this tell us?  The concern here was to avoid overwhelming hospitals with those who were not in immediate need of medical care.  Perhaps, this is also a sign of where truth arises from collision of error to the extent I looked it up after reading his bs.