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Fox News senior judicial analyst Andrew Napolitano said on Tuesday that stay-at-home orders from governors across the U.S. are unconstitutional because creating laws is a power delegated solely to legislatures

“The government has to recognize that the rights that are in the Constitution still exist in bad times as well as in good and it has to treat people equally,” Napolitano told “Fox & Friends.”

“If you can get in a line of cars to buy a cheeseburger at McDonald's, you can get in a line of cars to express your opinion about the government."


Napolitano’s comments came after the organizer of a protest against New Jersey’s coronavirus stay-at-home order was arrested. Kim Pagan, of Toms River, N.J., was charged Friday following the small but noisy demonstration in front of the New Jersey Statehouse in Trenton.

New Jersey police accused Pagan of violating emergency stay-at-home orders issued by Gov. Phil Murphy to contain the spread of the coronavirus.

Pagan was issued a summons and not arrested, according to a news release from state Attorney General Gurbir Grewal.

“If you think emergency orders are more like guidelines than actual rules, think again,” Grewal said in a tweet Friday.

Pagan has to answer to the charge in municipal court. Violations of emergency orders constitute a disorderly persons offense carrying a potential sentence of up to six months in jail and a $1,000 fine, Gewal said.

The protesters gathered outside the Statehouse as Murphy and other state officials held a media briefing about the COVID-19 pandemic inside, News 12 New Jersey reported.


Napolitano pointed out that Michigan Gov. Gretchen Whitmer and New Jersey Gov. Phil Murphy's stay-at-home orders are “made-up laws.”

“The only laws that we have to obey and the only laws for which we can be punished for not obeying are those enacted by the legislature," he added.

“The bad news is that the police are not in a position to distinguish. The good news is once these cases are tried when the pandemic is over, there isn’t a judge in the country who is going to recognize the power of the governor or a mayor to make up a law off the top of his head, to make up a punishment off the top of his head requiring people to comply with it. That’s not democracy in America and that’s not what the Constitution requires.”

Fox News' Robert Gearty contributed to this report.