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Many states (for example, Washington) around the US have issued an executive order prohibiting their residents from interacting with other citizens face-to-face, unless its a part of an "essential" activity:

All people in Washington State shall immediately cease participating in all public and private gatherings and multi-person activities for social, spiritual and recreational purposes, regardless of the number of people involved, except as specifically identified herein. Such activity includes, but is not limited to, community, civic, public, leisure, faith-based, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities. This prohibition also applies to planned wedding and funeral events. This prohibition shall remain in effect until midnight on April 6, 2020, unless extended beyond that date.

Is there precedent in US law for such a restriction? Or perhaps someone already tried to challenge this rule during the current pandemic? Preventing citizens from going to each others home for a visit seems like the ultimate form of restrictions, so it would be interesting to see if it ever held up in court.

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  • Could you provide an example? The orders I've seen strongly discourage it and close non-essential businesses, but I haven't seen one specifically prohibiting two people from meeting face to face. – IllusiveBrian May 2 '20 at 17:00
  • @IllusiveBrian added Washington as an example – JonathanReez May 2 '20 at 17:26
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I think the Washington law and order is fairly clear: you must stay home unless you are engaged in certain allowed activities. The underlying law, RCW 43.06.220(h) empowers issuing an order prohibiting "Such other activities as he or she reasonably believes should be prohibited to help preserve and maintain life, health, property or the public peace". Therefore I can walk my dog. When I do, there are a lot of people also out walking their dogs, so that provides a letter-of-the-law permitted exception to the stay-at-home order. Nothing in the order specifically addresses the situation where you pause your dog-walk to talk to a neighbor (the "appropriate social distancing" sub-rule only applies to recreational departures from your home).

It is well-established that the central legal issue is what the "compelling government interest" is, and whether these restrictions fail on grounds of narrow-tailoring or least-restrictiveness. The failure to include "go to your brother's place for lunch, provided you follow appropriate social distancing guidelines" as a permitted activity is a candidate for not being least-restrictive. The problem is that the courts will not engage in an infinite regress of second-guessings about whether certain measures are "truly necessary".

There is a SCOTUS challenge where the Pennsylvania Supreme Court upheld that's state's order, but a SCOTUS order requires the state to reply to a petition by Monday. The "status quo" is that these orders are legal, until someone constructs a compelling argument that they are not, and that matter is then resolved in favor of petitioner by SCOTUS (which has not happened). So far, governors have prevailed at the state level.

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