Jaime McMillan just overcame a six-week battle with COVID-19, but he’s worried health restrictions are now more of a menace to individual liberties and commerce than the virus is to public health.
“The only instrument we have to protect individuals’ liberties is the Constitution. And you can’t protect the health and safety of people by doing a shortcut around the Constitution, and this is coming from someone who’s survived COVID-19,” McMillan said in a phone interview.
The Fifth Amendment, he said, protects people from being deprived of property without due process of the law or without just compensation.
Health restrictions in place by the state, the city’s mask ordinances and even guidance from local public health agencies, McMillan says, are now skirting with legal jeopardy as essentially governmental takings from private businesses without compensation and eventually are likely to be challenged in court.
McMillan, a former constitutional law professor, said governmental takings aren’t confined to eminent domain. The law also protects people and businesses from regulatory takings stemming from enforcement of laws.
“I think that the federal government can defend itself because you know, whatever you think about the relief packages, we’ve printed something like $5 trillion for relief,” he said, “but when you look at the health restrictions on restaurants from the state, when you look at the mask ordinance by the city, no one’s considered compensation.”
While McMillan, 53, who battled COVID-19 for six weeks in March and April, said the discussions might seem academic, the problem is festering and getting more serious with each business, like The Palace Restaurant, which has announced it will close its doors.
“There’s a click economy and a brick economy, and we’re in danger of losing our brick economy,” he said.
The problems with COVID-19 health restrictions are particularly severe in small towns dependent on small businesses, said McMillan, a Durango investment adviser and former candidate for City Council.
“The problem in a rural community like Durango, is there’s a big difference in the ability of small businesses to withstand this versus a national chain. Walmart can withstand a diminution of sales that a small business can’t. And it seems our governments in the name of public health don’t recognize that disparity.”
The chance of any lawsuit emerging from a Durango small business or even a Colorado small businesses might be remote, but McMillan believes some small businesses across the nation are likely to challenge COVID-19 health restrictions as takings under the Fifth Amendment.
“I think people’s patience will run out at some point. Is anybody going to file a lawsuit? Well, most people don’t have the legal knowledge, the time or the budget, but there will be a lawsuit somewhere.”