ILYA SHAPIRO: Broad Lockdowns Are No Longer Constitutionally Justified.

States have the “police power” to govern for the general health, welfare and safety of society, so long as they have sufficient justification for doing so. But that doesn’t mean that there’s no limit on the actions that state and local officials can take, or that actions that were justified at one point will continue to be justified forever, regardless of underlying developments.

In other words, it’s prudent in a pandemic to restrict activities that would otherwise bring people together in a way that facilitates viral transmission, but it doesn’t mean governors get to “shut down” anything and everything on a whim. Recall that viral video of the guy running along the beach in California, chased by a hapless cop. Or that dad who got arrested for playing catch with his kids in a public park. Or mayoral edicts that stop drive-in church but permit drive-thru liquor sales. Or the Michigan order banning motorboats but not sailboats; the sale of seeds but not weed. . . .

As the facts on the ground change, government actions that once were grudgingly accepted now simply don’t pass the constitutional smell test. That’s especially so given the fundamental error that was made in ordering shutdowns based on arbitrary definitions of “essentiality,” as opposed to issuing rules according to the safety of various activities.

Yes.