The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Earlier today a judge on the Lake County Court of Common Pleas issued a preliminary injunction against the Ohio department of Health and Lake County General Health District barring enforcement of the state's shutdown order as applied to gyms and health clubs, insofar as such businesses comply with all applicable safety regulations. The decision is here. The complaint, filed by the 1851 Center for Constitutional Law, is here.
The court's decision is wholly based on state law grounds, specifically the Ohio Constitution and other provisions of Ohio law. Among other things, the court concluded that Ohio Health Director Amy Acton exceeded her statutory authority in imposing a de facto quarantine for longer than the incubation period for the coronavirus that causes Covid-19. Under the Ohio Administrative Code, the length of a quarantine is supposed to be equivalent to the incubation period of the contagion (not the period of communicability, which appears to be a problem with the way the Ohio Administrative Code is drafted). As the Ohio Health Department has noted the incubation period is up to 14 days, the judge found that the Department lacks the authority to impose a more lengthy "quarantine" on Ohioans.
One potential vulnerability in the court's order is the treatment of the relevant state orders as de facto quarantines, subject to the time limitation in the Ohio Administrative Code, as opposed to other orders authorized under Ohio law for the prevention of spread of contagious or infectious diseases. The judge writes that the Health Director "has quarantined the entire people of the state of Ohio" and that the director "has no statutory authority to close all businesses, including the plaintiffs' gyms, which she deems non-essential for a period of two months." Yet as the judge notes, in addition to authorizing quarantines and isolation orders, the Ohio Revised Code expressly gives the director authority to "make special or standing orders or rules . . . for preventing the spread of contagious or infectious diseases." While the plaintiffs in this case also raised constitutional challenges to the breadth of delegation contemplated by these provisions, the court's decision did not reach a conclusion on the validity of those arguments.
While I am skeptical of this suit on the merits, I don't begrudge the plaintiffs for filing these claims. The assertion of extraordinary government power requires extraordinary justifications, and it is a feature, not a bug, that citizens and activist groups have the ability to challenge the exercise of government power, even when public health is at stake. This is how I felt about those lawyers and others who challenged national security measures adopted in the wake of 9/11, and it's how I also feel about those challenging the various Covid-19 measures adopted by state and local governments. If the government is going to exercise broad emergency powers, it is good to have those powers challenged in court and the lawfulness of government actions evaluated by judges.