EVANSVILLE — Howey Politics Indiana has received questions from readers about the novel coronavirus. Here, we compile answers to your legal questions.

Where does the power to quarantine and close businesses come from?

For the most part, states have wide latitude under the 10th Amendment to protect public health. The federal government can make recommendations and offer suggested guidelines, but much more beyond that would be a stretch under the commerce clause. Most power for this rests with the states.

Why does the governor have so much authority?

All of the governor’s actions must first be approved by the legislature, but in virtually every state the legislature has delegated broad powers to the governor whenever he or she declares an emergency. (Congress has done the same for the president.)

What about mayors?

Mayors generally lack the authority governors have and when the two conflict, the state government usually wins because cities are creations of the state. But in the vast majority of situations, mayors are acting with the authority and blessing of state government.

Doesn’t shutting down my church or restaurant violate the 1st Amendment?

No. Limiting the number of people at a gathering, including churches, is permissible. Thus far the orders have been content-neutral. The rules must simply compel governmental interest and be narrowly tailored to achieve that interest.

Are bars and restaurants really required to close down in Indiana?


As noted above, the governor has sweeping powers because a public health emergency has been declared. However, Gov. Holcomb’s statement allegedly requiring closures comes in a single bullet point of a press release “directive,” not in a formal executive order or proclamation. Since this was originally released, Gov. Holcomb issued an executive order. Notably, neighboring governors used executive orders to accomplish this. Indiana state law (I.C. 10-14-3-12) requires that emergency gubernatorial powers be in the form of an executive order or proclamation, and that this order or proclamation be promptly filed with the secretary of state and with the clerk of the city or town affected or with the clerk of the circuit court. This initially created confusion and arguably makes the directive unenforceable.

Will businesses be able to sue for lost earnings under the 5th Amendment’s “nor shall private property be taken for public use, without just compensation”?

That’s unlikely, but we don’t have a lot of case law offering guidance in this situation. Deprivation of all economically beneficial use is, from the perspective of a property owner, deprivation of the property itself. But the closures are short term and still allow take out/delivery. Courts reviewing any such a balancing test, and owners, would need to prove the closures interfered with reasonable investment-backed expectations. In Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002), business closures for 24- and eight-month periods were not considered a taking because; in short, fluctuations in property value cannot be considered constitutional takings.

What about the rule of law?

While it is always critical to follow the law, it is especially important in times of crisis. Our true character will be revealed in times like these. Our system of the rule of law is based on society collectively respecting boundaries. We tell each other and ourselves that the words we ascribe to the law – due process, equality, justice – actually have force and meaning. We believe, against cynicism, that we’re ruled not by raw power but by these magical words which form the rule of law. But this only works if we each choose to believe and respect these norms and customs. It’s up to each of us to support it. There are few things more important to a society’s success and longevity.

Joshua Claybourn is an attorney based in Evansville. This column has been prepared for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Do not act upon this information without seeking professional counsel.