Despite some victories in cases involving religious freedom and abortion rights, broader legal challenges to COVID-19 lockdowns so far have not had much success. But recent comments by state supreme court justices in Texas and Pennsylvania suggest at least some judges are open to the idea that legal restrictions aimed at curtailing the epidemic can go too far.
The Texas Supreme Court yesterday declined to hear a challenge to that state's lockdown by business owners, saying their claims, "raised in an original action in this Court, should first be presented to the appropriate district court." Justice James Blacklock, joined by three of his colleagues, concurred in that decision but noted that the issues raised by the plaintiffs cannot be lightly dismissed (emphasis added):
All government power in this country, no matter how well-intentioned, derives only from the state and federal constitutions. Government power cannot be exercised in conflict with these constitutions, even in a pandemic.
In the weeks since American governments began taking emergency measures in response to the coronavirus, the sovereign people of this country have graciously and peacefully endured a suspension of their civil liberties without precedent in our nation's history. In some parts of the country, churches have been closed by government decree, although Texas is a welcome exception. Nearly everywhere, the First Amendment "right of the people to peaceably assemble" has been suspended altogether….In many places, people are forbidden to leave their homes without a government-approved reason. Tens of millions can no longer earn a living because the government has declared their employers or their businesses "'non-essential.'"
Those who object to these restrictions should remember they were imposed by duly elected officials, vested by statute with broad emergency powers, who must make difficult decisions under difficult circumstances. At the same time, all of us—the judiciary, the other branches of government, and our fellow citizens—must insist that every action our governments take complies with the Constitution, especially now. If we tolerate unconstitutional government orders during an emergency, whether out of expediency or fear, we abandon the Constitution at the moment we need it most.
Any government that has made the grave decision to suspend the liberties of a free people during a health emergency should welcome the opportunity to demonstrate—both to its citizens and to the courts—that its chosen measures are absolutely necessary to combat a threat of overwhelming severity. The government should also be expected to demonstrate that less restrictive measures cannot adequately address the threat. Whether it is strict scrutiny or some other rigorous form of review, courts must identify and apply a legal standard by which to judge the constitutional validity of the government's anti-virus actions. When the present crisis began, perhaps not enough was known about the virus to second-guess the worst-case projections motivating the lockdowns. As more becomes known about the threat and about the less restrictive, more targeted ways to respond to it, continued burdens on constitutional liberties may not survive judicial scrutiny.
As South Texas College of Law professor and Volokh Conspiracy blogger Josh Blackman notes, "the last sentence is quite significant," since it implies that "measure[s] that were constitutionally proper in March and April may be less proper in May and June."
Last month three members of the Pennsylvania Supreme Court expressed similar concerns about the propriety of lockdowns. The court rejected a challenge to that state's lockdown by a candidate committee, a real estate agent, and a golf course. Among other claims, the plaintiffs argued that they had been deprived of due process and that the business closures ordered by Gov. Tom Wolf (D) amounted to a "regulatory taking," requiring "just compensation" under the Fifth Amendment.
The court concluded that the plaintiffs had received all the procedural protections that reasonably could be expected in the circumstances—i.e., a "waiver" process that critics described as "utterly ineffective." The court also rejected the Takings Clause claim, emphasizing that the business closure order was a "temporary" exercise of the state's police power, which includes the authority to protect the public from communicable diseases.
Chief Justice Thomas Saylor, joined by Justices Kevin Dougherty and Sallie Mundy, expressed skepticism on both of those points. Saylor questioned "the majority's conclusion that 'summary administrative action' by the executive branch to close many businesses throughout the Commonwealth must evade judicial review as a check against arbitrariness," adding, "I don't believe the executive's determinations of propriety can go untested in the face of the present allegations of inconsistency and irrationality. "
Saylor thought the majority's emphasis on the temporary nature of the business closures was misplaced. "While the majority repeatedly stresses that such closure is temporary," he wrote, "this may in fact not be so for businesses that are unable to endure the associated revenue losses. Additionally, the damage to surviving businesses may be vast. Significantly, moreover, the Supreme Court of the United States has admonished that the impermanent nature of a restriction 'should not be given exclusive significance one way or the other' in determining whether it is a proper exercise of police power."
While the state undoubtedly has a compelling interest in trying to limit the spread of COVID-19, Saylor said, "greater account must be given to the specific nature of the exercise," since "arbitrariness cannot be tolerated, particularly when the livelihoods of citizens are being impaired to the degree presently asserted." He thought the court should not have heard the case directly under its "King's Bench" jurisdiction but should instead have let the relevant facts be developed in the Commonwealth Court.
Other lockdown cases are brewing in state and federal courts. Last week Butzel Long filed a complaint on behalf of several businesses in the U.S. District Court for the Western District of Michigan, arguing that the state's lockdown violates due process, the Fourth Amendment's Privileges and Immunities Clause, the 14th Amendment's Privileges or Immunities Clause, and the Dormant Commerce Clause, which limits state policies that interfere with interstate commerce. This week Cooper & Kirk asked the Wisconsin Supreme Court for an injunction against that state's lockdown, alleging violations of the right to free speech, religious freedom, and freedom of travel.
Reason Contributing Editor Walter Olson, a senior fellow at the Cato Institute, argues that such challenges are iffy propositions given the long history of judicial deference to state decisions dealing with the threat of contagious illnesses. In particular, he says, Commerce Clause claims, which Attorney General William Barr has suggested might be viable, are not likely to fare well. Olson notes that the Supreme Court has looked askance at the argument that quarantines are unconstitutional when they unduly obstruct interstate commerce.
In the 1902 case Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health, for example, the Court rejected a Commerce Clause challenge to a Louisiana ban on the entry of admittedly healthy sea travelers at quarantined ports. "That from an early day the power of the states to enact and enforce quarantine laws for the safety and the protection of the health of their inhabitants has been recognized by Congress, is beyond question," the Court said. "That until Congress has exercised its power on the subject, such state quarantine laws and state laws for the purpose of preventing, eradicating, or controlling the spread of contagious or infectious diseases, are not repugnant to the Constitution of the United States, although their operation affects interstate or foreign commerce, is not an open question."
By contrast, dissenting Justice Henry Billings Brown, joined by Justice John Marshall Harlan, drew a distinction between Louisiana's policy and a state's well-established authority to quarantine disease carriers. The issue raised by the Louisiana case, Brown said, was whether "the legislature may declare certain portions of the state to be in quarantine, and prohibit the entry therein of all persons whatsoever, whether coming from the United States or foreign countries, from infected or uninfected ports, whether the persons included are diseased or have recently been exposed to contagion, or are perfectly sound and healthy, and coming from ports in which there is no suspicion of contagious diseases."
Brown questioned the logic of Louisiana's policy:
The only excuse offered for such a wholesale exclusion of immigrants is, as stated by the [Louisiana] supreme court, "to keep down, as far as possible, the number of persons to be brought within danger of contagion or infection, and by means of this reduction to accomplish the subsidence and suppression of the disease, and the spread of the same." In other words, the excuse amounts to this: that the admission, even of healthy persons, adds to the possibility of the contagion being communicated upon the principle of adding fuel to the flame. It does not increase the danger of contagion by adding infected persons to the population, since the bill avers that all the immigrants were healthy and sound. All it could possibly do is to increase the number of persons who might become ill if permitted to be added to the population. This is a danger, not to the population, but to the immigrants. It seems to me that this is a possibility too remote to justify the drastic measure of a total exclusion of all classes of immigrants.
Brown concluded that Louisiana's blanket ban "is not a necessary or proper exercise of the police power, and falls within that numerous class of cases which hold that states may not, in the assumed exercise of police power, interfere with foreign or interstate commerce."
Judges now are beginning to express qualms about even broader disease control measures—ones that, like Louisiana's policy, primarily affect people who are not actually carriers. The question is whether those skeptics will go down in history as dissenters like Brown and Harlan or as successful defenders of the principle that not everything governments do in the name of protecting public health is consistent with the Constitution.