The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
My latest contribution to the Jotwell website constitutional law section (which reviews important recent legal scholarship) focuses on Lindsay Wiley and Steve Vladeck's excellent forthcoming article, "Coronavirus, Civil Liberties, and the Courts: The Case Against 'Suspending' Judicial Review," which will soon be out from the Harvard Law Review Forum. Here is an excerpt from my review:
The coronavirus epidemic has raised urgent questions of constitutional rights and judicial review. In response to the pandemic, which has taken over 100,000 lives in the US and many more abroad, 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 Free Exercise of Religion and Free Speech clauses of First Amendment, the Second Amendment, constitutional protection for abortion rights, the Takings Clause, separation of powers principles, and other provisions of federal and state constitutions.How should we treat these claims? In particular, how should courts treat them?
In light of these questions, it's hard to imagine a more timely and relevant constitutional law article than Lindsey Wiley and Steve Vladeck's forthcoming article. In it, Wiley and Vladeck ask whether normal judicial review should be "suspended" during the ongoing pandemic.
In reviewing such challenges, should courts opt for "normal," relatively non-deferential judicial review? Or should they give the government broad deference, so long as there is a minimally plausible emergency rationale for the challenged policy? Wiley and Vladeck call the latter approach the "suspension model," and offer three powerful considerations that count against it.
I previously discussed these issues—and an earlier version of Wiley and Vladeck's article—in this post, from which part of the Jotwell piece is excerpted.