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Cuomo Is On A Slippery Slope With Enforcing His New Restrictions

Should people take part in large gatherings without taking proper COVID-19 precautions?

No, not unless some measure of social distancing takes place.

Should Gov. Andrew Cuomo have the power to dictate local police departments, code officers or health department workers go into homes to break up those gatherings without observing basic due process rights?

No.

But that’s it appears the governor is telling local governments to do with an edict earlier this week limiting gatherings in people’s homes to 10 people or less. The governor says he has contact tracing results that show gatherings in homes are one of three central reasons COVID-19 is spreading throughout the state. The U.S. Constitution, however, does not appear to give him the right make the matter one of law. The Supreme Court has upheld time and again the right to privacy inside one’s home. Yet here’s the governor this week saying people can’t have more than 10 people in a home. How, exactly, does he plan to enforce that regulation and not violate the rights of privacy enumerated by the Supreme Court in Mapp v. Ohio, an illegal search and seizure case; Griswold v. Connecticut, a contraception case; or Lawrence v. Texas, a 2003 Supreme Court case that invalidate a Texas sodomy law? If there is no evidence of wrongdoing from outside a dwelling such as loud noise or a bunch of cars in front of a house, how can anyone can enforce this order without a search warrant? Are families serving turkey, mashed potatoes, gravy and a search warrant for dessert this year? We’re sure judges are going to love signing warrants for every time a house is suspected of having more than 10 people in it for however long Cuomo’s order lasts.

Governors can and should issue guidelines and recommendations, and if contact tracing results do indeed show in-home Halloween parties spread COVID-19, it would appear guidance around small gatherings is warranted. But guidance is where the government’s role should end when it comes to the privacy of one’s home. It’s one thing to issue an edict from Albany. It’s quite another to task local governments with enforcing a measure that come dangerously close to the line of unconstitutional infringement on the right of privacy in a home.

“Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence,” Justice Tom C. Clark wrote in his majority opinion in Mapp v. Ohio, a 1961 Supreme Court case in which the court ruled evidence seized without a valid search warrant violated a woman’s right to privacy in her home. “‘As Mr. Justice Brandeis, dissenting, said in Olmstead v. United States, 277 U. S. 438, 485 (1928): ‘Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. . . . If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.’ … Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the states, and that the right to be secure against rude invasions of privacy by state officers is, therefore, constitutional in origin, we can no longer permit that right to remain an empty promise. Because it is enforceable in the same manner and to like effect as other basic rights secured by the Due Process Clause, we can no longer permit it to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment.”

While it is unassailable that health emergencies allow some infringement on rights, in our view Cuomo is on a slippery slope when it comes to enforcing the gathering limit.

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