The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.