As the state and federal government consider measures to ensure residents are practicing social distancing to prevent further spread of COVID-19, some worry that these measures could go too far and infringe on the individual rights of United States citizens.

On March 18, the Utah County Health Department issued a public health order stating that gatherings of more than 10 people would be “prohibited.”

The Salt Lake County Health Department issued a similar order on Thursday stating that a violation of the order would be “punishable as a Class B Misdemeanor.”

Utah County Attorney David Leavitt said in a press release his office would not enforce the health department’s orders, but encouraged residents “to recognize the seriousness of this pandemic and understand that each of us have a personal responsibility” to prevent coronavirus from spreading.

On Thursday, Utah Gov. Gary Herbert said the two county health departments had been directed to repeal their orders.

“The State of Utah was not consulted on the new orders issued by the Salt Lake and Utah County Departments of Health,” Herbert tweeted. “The Utah Department of Health has directed these orders be repealed immediately.”

The governor later tweeted that his office “strongly recommend(s) that people avoid large group gatherings (10+), but the State does not intend to threaten residents with criminal prosecution, which is why we are amending recently issued orders.”

Connor Boyack, president of the libertarian think tank Libertas Institute, said the health department orders to criminalize large gatherings could be unconstitutional.

“Article I, Section I, Utah Constitution (states that) ‘All men have the inherent and inalienable right to … assemble peaceably,’ ” Boyack tweeted. “These government orders purporting to prohibit more than 10 people from gathering together are unconstitutional.”

In an interview on Tuesday, Boyack said his concern “is born out of the fact that this was just a tersely and broadly written order” that could “trigger a misdemeanor” charge for groups bigger than 10 who gather.

Boyack added that he believes the order was a good-faith effort on behalf of counties to align with statewide recommendations.

“I think the desires stay in line with, frankly, what Gov. Herbert rightly has been pursuing, and that is a call for voluntary distancing and limiting of gatherings and not having this authoritarian approach that criminalizes people,” Boyack said.

The Libertas Institute president said courts would likely uphold the government’s ability to enact restrictions on public property, “but I think things get more problematic when it comes to what people do in their own homes.”

“It seems very problematic for the government to dictate to private property owners whether they can have 11 people (gather) or not,” he said, pointing out that some families in Utah have more than 10 people in them. “These arbitrary numbers, because they’re arbitrary, should be more of a guideline rather than an absolute ban.”

Fears about the coronavirus spreading could lead to problematic actions at the federal level as well, Boyack said.

“We’re extremely troubled by various federal agencies trying to exploit these circumstances to pursue different policy goals,” Boyack said. “It’s very clear that there are some in the federal government who want to leverage this crisis for various agendas.”

On Saturday, Politico reported that the U.S. Department of Justice had asked Congress for new emergency powers, including the ability to ask a judge to detain people indefinitely without trial.

U.S. Sen. Mike Lee, R-Utah, strongly criticized the Department of Justice’s request for new powers.

“OVER MY DEAD BODY,” Lee tweeted on Saturday.

“If this is a joke, it’s not funny,” Lee continued. “If it’s not a joke, we’ve got much bigger problems.”

Boyack said he worried that restrictive state and federal measures meant to be temporary could “become the new status quo that people are expected to tolerate for years to come,” using the Transportation Security Administration (TSA), which was created in response to the Sept. 11 attacks, as an example.

“Our greatest concern at this point is that all of these temporary measures being enacted or proposed in the name of combating COVID-19 will persist after the crisis has been resolved,” Boyack said.

Connor Richards covers government, the environment and south Utah County for the Daily Herald. He can be reached at crichards@heraldextra.com and 801-344-2599.

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