The Case for "Regular" Judicial Review of Coronavirus Emergency Policies

Legal scholars Lindsay Wiley and Steve Vladeck explain why courts should not give special deference to the government in cases challenging the constitutionality of anti-coronavirus policies.


The Supreme Court.

In response to the coronavirus pandemic, governments at all levels have enacted a host of policies that potentially threaten constitutional rights or butt against structural limits on government power. Numerous cases have been filed challenging some of these policies, arguing that they violate the First Amendment, the Second Amendment, constitutional protection for abortion rights, the Takings Clause, and other provisions of federal and state constitutions.

In reviewing such challenges, should courts opt for "normal," relatively nondeferential judicial review, or should they give the government broad deference, so long as there is a minimally plausible emergency rationale for the challenged policy? In an insightful recent post at the Harvard Law Review blog, legal scholars Lindsay Wiley and Steve Vladeck make a strong case for the former approach:

Not surprisingly, local and state government orders aimed at mitigating the spread of novel coronavirus have already provoked a series of objections grounded in civil liberties. Just as quickly, courts entertaining challenges to these orders have stumbled into the central (and long-running) normative debate over emergency powers: Should constitutional constraints on government action be suspended in times of emergency (because emergencies are "extraconstitutional"), or do constitutional doctrines forged in calmer times adequately accommodate exigent circumstances?

In one of the first challenges to a coronavirus emergency order, New Hampshire defended Governor Christopher Sununu's emergency order banning gatherings by arguing that "[a] court should only interfere" with "[a]n executive's decision to exercise emergency powers in the face of a rapidly evolving public health crisis. . . . when the executive's actions were not taken in good faith or if there is no factual basis for the executive to believe that a restriction he imposed was necessary…"

In an essay forthcoming in the Harvard Law Review Forum, we argue that the mitigation strategies adopted in response to the coronavirus pandemic highlight three central problems with the "suspension" approach to judicial review of crisis powers. First, like the Constitution's explicit "suspension" power, which prohibits Congress from suspending the writ of habeas corpus "unless when in Cases of Rebellion or Invasion the public Safety may require it," the suspension principle adopted by judges in some crisis powers cases is inextricably linked to the idea that the crisis is of finite — and limited — duration…. But in a public health crisis like the coronavirus pandemic, when the restrictions are designed to slow the progress of the epidemic (and there might therefore be a relationship between the efficacy of the restrictions and the duration for which they will be needed), the stopgaps are potentially indefinite. Allowing for the suspension of more rigorous judicial review in such circumstances therefore risks allowing the exception to swallow the rule…

Second, and relatedly, the suspension model presupposes that "ordinary" judicial review will judge government actions in a crisis too harshly — and, in the process, risks handicapping the government's response. Here, too, the coronavirus pandemic provides a useful (if still-unfolding) counterexample: Even if curtailments of liberty — from business closures to shelter-in-place orders to quarantine orders for travelers — are subjected to the normal scrutiny arising from comparable government incursions into civil liberties, they are likely to be upheld. Every level of government has an unquestionably compelling interest in preventing the spread of a highly contagious (and often lethal) disease. To similar effect, if that compelling interest can be reasonably vindicated through less restrictive measures that are equally available to the government at the same time, it hardly undermines the government's response to require it to pursue them….

Finally, and perhaps most importantly, the suspension model wholly discounts the independent checking function of courts in a crisis — as perhaps the only institution that is in any structural position to push back against potential overreaching by the local, state, or federal political branches. By subjecting government incursions on civil liberties to meaningful judicial review, courts force the government to do its homework — to communicate not only the purposes of its actions, but also how the imposed restrictions actually relate to and further those purposes….

All three of these points strike me as both important and valid. I would add that imposing normal judicial review on emergency measures can help reduce the risk that the emergency will be used as a pretext to undermine constitutional rights and weaken constraints on government power even in ways that are not really necessary to address the crisis.

In many countries around the world, authoritarian leaders are using the pandemic as an excuse to expand their power and crush dissent. Liberal democracy is more firmly entrenched in the US than in countries like Hungary, where Prime Minister Viktor Orban has exploited the crisis to consolidate authoritarian rule. But it would be naive to imagine we are immune from the tendency of governments to exploit crises for their benefit. To the contrary, we too have a long history of crises being used to undermine constitutional rights, subvert limits on government power, and target unpopular minorities. The notorious internment of Japanese-Americans during World War II is just one of many examples.

The fact that the coronavirus crisis is a genuinely serious threat to public health does not mean it can't be exploited in similar ways. World War II was a genuine crisis, too. Indeed, the genuinely severe nature of the crisis may actually make the threat of exploitation even greater, as the severity of the danger makes Americans more willing to sacrifice constitutional rights to address it, and less likely to closely scrutinize government actions enacted in response.

As Wiley and Vladeck point out, many, probably even most, emergency measures will be upheld even under ordinary judicial review. Given the severity of the threat, they can pass even a high level of scrutiny. But maintaining normal judicial review reduces the risk of pretextual policies, and helps ensure that even well-intentioned ones do not overreach.

One standard critique of nondeferential judicial review in such situations is that judges may lack the specialized expertise needed to assess emergency policy. Few if any judges have expertise in epidemiology or public health. But anti-coronavirus policies are, in most cases, enacted by politicians who themselves are not experts. They can, of course, rely on advice provided by such experts. But the same is true of judges exercising the power of judicial review, who routinely consider testimony and other evidence submitted by scientists and other experts of various kinds. If the government's policies really are based on strong scientific evidence, then they should be able to prove that in court, without any special judicial deference.

If lack of technical expertise were a justification for suspending normal judicial review, it would apply to a vast range of cases, not just challenges to public health policies. The same rational can be (and often is) used to justify broad deference in the fields of immigration, national security policy, and almost any other government that addresses a complex issue. In many of these fields too, the government can and does claim that its constitutionally questionable policies are necessary to save lives, and that those policies are based on specialized expertise that courts are not qualified to assess. I explain in greater detail why such arguments for special deference should be rejected here.

The emergency argument for judicial deference should be distinguished from claims that some constitutional rights claims are just generally wrong, or that the right in question generally deserves little judicial protection. Many conservatives, for example, take that view of abortion rights, and many on the left have a similar view when it comes to gun rights.

If you believe that gun rights claims or abortion rights claims are wrong irrespective of whether there is a public health emergency going on, then by all means make that argument. But we should resist the temptation to claim that rights claims we dislike should be excluded from normal judicial review because of the need to defer to the government's judgment in emergency situations. The same rationale can easily be used to gut judicial protection for rights you do care about. Those who live by the sword of special deference in emergency situations can all too easily die by it.

Wiley and Vladeck's analysis and my extensions of it do not by themselves tell us how any particular legal challenge to coronavirus emergency measures should be resolved. That will depend on the arguments and facts in each case. But they do explain why courts should not abjure normal judicial review in favor of broad deference to emergency measures.

UPDATE: I have made some minor additions to this post.

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  1. You know Professor Somin, I would much rather a state legislature be required to review their own emergency edicts, as opposed to the Courts having to get involved. Not knocking the Courts, but I would much rather have people who are accountable via the ballot box forcing themselves to periodically review themselves in an emergency. Maybe every 60 days? 30 days?

    The suspension model has worked for a long time. And replace it with what? An untried and untested theory. Um….maybe not. Also, I do think an emergency is finite, and has a definite end. If a situation presents itself that looks like an emergency with no termination, then maybe it is not an emergency after all. And the Courts should jump in at that point.

    1. Have you not heard of The Long Emergency?

    2. “The suspension model has worked for a long time.”

      It has been used for a long time. Worked is disputable.

    3. The suspension model has worked for a long time.

      Worked on behalf of newborn dictators, perhaps. What sadly few examples we have from history of democracy or even something like it shows legislatures giving over emergency powers to the leader, who never gives them up. From Ancient Rome and Greece, to Venezuela and Turkey the past few years.

      If such should be done, it should be reviewed regularly with re-approval or it expires. And given how well it has worked out historically, I’m not so sure a 1% death rate is even worth the risk.

      1. We agree, Krayt. I want our ‘Duma’ in the People’s Republic of NJ to get their asses back into session and vote to re-authorize the restrictions with a time limit. Currently, in thew People’s Republic, the restrictions are for ‘an indeterminate amount of time’ which to me is way too open-ended.

  2. ” courts force the government to do its homework — to communicate not only the purposes of its actions, but also how the imposed restrictions actually relate to and further those purposes”

    And when the government’s reasons actually are rational, in publishing them, the court provides them legitimacy. Not legitimacy because of the court having done so, but that people will read them and grudgingly agree.

    The problem is that a lot of this stuff is arbitrary and capricious. Bans on the selling of vegetable seeds (MI, VT) need to be justified, particularly as this is the time of year when people start indoor seedlings.

    1. When are the government’s reasons actually rational? About as often as Joe Biden can put subject to predicate to object in a mellifluous manner.

  3. Hmm, wonder how our distinguished Rev. Kirkland will respond to the thesis of Wiley and Vladeck given that the same was published in an Ivy publication?

    Would he dare characterize them as clingers?

    Would he label them as intellectually challenged?

    1. I’m striving to find much practical controversy. The authors propose something along the line of ‘normal, nondeferential’ review . . . then discuss how the emergency and the compelling government interests and the life-or-death stakes indicates those battling a pandemic should generally be expected to prevail.

      1. How does one square the following two contradictory jurisprudential propositions:

        (1) the government has a compelling interest in battling what some describe as an emergency by means of its police power and

        (2) the government has no general duty to protect anybody, see Castle Rock v. Gonzalez and its progeny.

        1. Individuals have the ability to protect themselves, to a fairly large degree, by social distancing. Don’t mistake me for victim blaming, but I don’t see a flood of news stories about individuals saying they took all the social distancing precautions and nevertheless still got infected. Maybe I’m wrong, and surely social distancing isn’t 100% effective, but in many states it appears to be working quite well. It will probably be some time before this specific virus can be studied scientifically. Whatever the case may be, the government is being very paternalistic at the current time.

          1. Social distancing is about not spreading disease like wildfire, overwhelming hospitals, causing needless deaths.

            I find the shift interesting, many thinking it is about protecting yourself from infection per se. No, that’s not it.

            It’s fine if you want to for your own health, but that’s not why society is doing this.

            1. I find the shift interesting, many thinking it is about protecting yourself from infection per se.

              “Many” apparently starting to include at least some of the modelers.

              After so much trumpeting that the total number of infections would remain inevitably constant regardless of interventions, watch for more pivoting like this in the increasingly likely scenario that the total number of infections ultimately peters out in a range far below the doomsday predictions used to justify the mass lockdowns.

  4. Prof. Somin makes a post that doesn’t advocate for increased immigration (now more than ever!), though he can’t help but ding Hungary for, among other things, closing its border during a pandemic.

    I dare say, I enjoyed reading it.

  5. Professor Somin is my rock.

  6. I know it’s English, and a dissent to boot, but it’s time to roll out Liversidge again:

    In England, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons, and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.

    1. Martinned, I question what relevance that has to American constitutionalism. In your quote, I think I detect a tacit assumption that the judges act the part of the sovereign, to protect the sovereign’s subjects, and correct the sovereign’s government, if the sovereign’s government overreaches. Please correct me if you see it otherwise.

      In America, the judiciary is but one of three divisions of government, all responsible alike to the sovereign People—popular sovereignty being a notion the English have never accommodated. I suggest that difference has implications tending to diminish the relevance of your interesting quotation.

      1. Stephen. the people are not sovereign. The judiciary is PART of the sovereign, the government that rules us and which the people land in a coronavirus laden prison if they disobey.

        Indeed, if anything, the parliamentary system in the UK comes far closer to popular sovereignty than the system our slave-raping, racist framers created. Yes, there’s a queen, but ultimate responsibility for the laws lies in a representative Parliament.

        At any rate, the laws do speak in wartime, in both the US and the UK, it has nothing to do with any BS about the “people” being in charge, but the state interests for diverging from general legal principles tend to be stronger in a war footing, in both countries. “Popular sovereignty” adds nothing intelligent to the analysis- it never does. It just leads to Randy Weaver style shootouts when people actually take Lathrop’s ideas seriously.

        1. The PEOPLE are sovereign………..

          1. And they have rights inherent, and not because someone powerful granted it to them. And they created a government and gave it certain powers and no others, explicitely.

            The difference between the US and the EU is the EU saw unlimited power concentrated, and threw revolutions for The People to wield it, while the US decided it shouldn’t exist as a temptation for the power hungry at all.

  7. Incongruously missing in the OP’s analysis? Potential overreach by the courts. For some reason, the question of government overreach features prominently, but then gets treated as if courts are not part of government. In the OP, overreach only matters for the legislature and the executive.

    But please note, legislatures and executives are politically accountable, and courts are not. In normal times that is rightly accounted a feature, not a bug. You check the majoritarianism normally delivered by political accountability using un-politically-accountable legal bastions empowered to protect rights—the courts.

    Pandemic eras are not normal times. Given that, the central question becomes whether novel circumstances should shift the balance of governance toward accountable majoritarianism, toward unaccountable individualism, or just leave everything as it usually is. I don’t see much in the OP to help evaluate that question.

    1. One of the reasons to have an unelected judiciary is to ensure there is a forum to hear arguments alleging majority tyranny.

      I mean, in real time, it doesn’t often mean very much because courts are very deferential in these situations, but still, you want at least the possibility that some unelected, more dispassionate legal minds will check the passions of the awful “People”.

  8. In addition to the compelling interest in mitigating the pandemic, states’ existing powers to fight infectious disease are vast, and many of the relevant precedents pre-date both the more individual-rights friendly rulings of the mid-20th century and the development of modern medical science that has often provided alternatives to using those powers. I suspect that the government will win most of these cases even without any sort of pandemic principal putting its thumb on the scale.

  9. There is no equivalency between an imagined right to abortion and a constitutionally enumerated right to bear arms.

    That would be like comparing unicorns to Arabians.

  10. Fundamentally, why are judges going to be better managers of an emergency then elected officials? I agree that there is judicial review, of such basic things as whether there is a real emergency, whether it is still present, and whether the proposed action is within emergency powers. There is a litany of emergency actions, like curfews and quarantines, that are generally accepted. Novel actions might require novel review. But to suggest that courts should simply form their own opinion of whether a particular remedy is appropriate to a particular emergency, and pass judgment on each detail – do we need an 8 pm curfew here, or would an 11 pm curfew be good enough? – is to have courts make policy, and on matters not at all within their expertise. Nor is the fact that not every pandemic ends quickly a problem. It’s not like every war has ended quickly. Professor Somin hasn’t explained why a multi-year pandemic is any different analytically from a multi-year war. So yes, emergency powers are not blank checks to the Executive. Courts have a definite role. But courts should Limit their role to policing the boundaries, not dive into the muck and decide every issue.

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