The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Federal Court Holds Pennsylvania's Shutdown Order Unconstitutional: Stay-at-Home Order

More on this interesting decision (and one that takes a much less government-friendly approach than many other recent decisions on these general topics).


I blogged below about the general analysis in Judge William S. Stickman IV's decision in County of Butler v. Wolf (W.D. Pa.), as well as its application to the gatherings ban. But the court also struck down the Governor's order to "stay-at-home except as needed to access, support or provide life sustaining business, emergency, or government services"; that order, the court concluded, violates substantive due process:

Although this nation has faced many epidemics and pandemics and state and local governments have employed a variety of interventions in response, there have never previously been lockdowns of entire populations—much less for lengthy and indefinite periods of time…. [T]he lockdown effectuated by the stay­at-home orders is not a quarantine. A quarantine [under Pennsylvania law] requires, as a threshold matter, that the person subject to the "limitation of freedom of movement" be "exposed to a communicable disease." Moreover, critically, the duration of a quarantine is statutorily limited to "a period of time equal to the longest usual incubation period of the disease." The lockdown plainly exceeded that period….

Defendants attempt to justify their extraordinary "mitigation" efforts by pointing to actions taken to combat the Spanish Flu pandemic a century ago. Ms. Boateng testified that, in response to the Spanish Flu, "much of the same mitigation steps were taken then, the closing of bars, saloons, cancellation of vaudeville shows, as they called them, and cabarets, the prohibition of large events. So some of these same actions that we're taking now had been taken in the past." But an examination of the history of mitigation efforts in response to the Spanish Flu—by far the deadliest pandemic in American history—reveals that nothing remotely approximating lockdowns were imposed.

Records show that on October 4, 1918, Pennsylvania Health Commissioner B. Franklin Royer imposed an order which closed "all public places of entertainment, including theaters, moving picture establishments, saloons and dance halls and prohibit[ed] all meetings of every description until further notice." The order left to local officials the decision on whether to cancel school and/or religious services. The restrictions were lifted on November 9, 1918…. [S]tate and local mitigation measures were of similarly short durations across the nation. While, unquestionably, states and local governments restricted certain activities for a limited period of time to mitigate the Spanish Flu, there is no record of any imposition of a population lockdown in response to that disease or any other in our history….

[Still,] just because something is novel does not mean that it is unconstitutional….

[I]n Lutz v. City of York, 899 F.2d 255 (3d Cir. 1990). In Lutz, the Third Circuit examined a municipal ordinance regulating car cruising and unequivocally held that "the right to move freely about one's neighborhood or town, even by automobile, is indeed, 'implicit in the concept of ordered liberty' and 'deeply rooted in the Nation's history.'" … [The Third Circuit applied intermediate scrutiny to the cruising ordinance, but t]he Court wonders whether the lockdown effectuated by the stay-at-home provisions of Defendants' orders are of such a different character than the municipal car cruising ordinance as would warrant the imposition of strict scrutiny.

{[And courts have also] long recognized that beyond the right of travel, there is a fundamental right to simply be out and about in public. City of Chicago v. Morales (1999) (striking down an antiloitering ordinance aimed at combatting street gangs and observing that "the freedom to loiter for innocent purposes is part of the 'liberty' protected by the Due Process Clause of the Fourteenth Amendment."). See also Papachristou v. Jacksonville, 405 U.S. 156, 164-65 (1972) (citing a Walt Whitman poem in extolling the fundamental right to loiter, wander, walk or saunter about the community); Bykofsly v. Borough of Middletown, 429 U.S. 964 (1976) (Marshall, J., dissenting) ("The freedom to leave one's house and move about at will is of the very essence of a scheme of ordered liberty, … and hence is protected against state intrusions by the Due Process Clause of the Fourteenth Amendment.") (internal citation and quotation marks omitted)); Waters v. Barry, 711 F. Supp. 1125, 1134 (D.D.C. 1989) (referencing Papachristou and stating "[t]he right to walk the streets, or to meet publicly with one's friends for a noble purpose or for no purpose at all—and to do so whenever one pleases—is an integral component of life in a free and ordered society.").} …

While the Third Circuit applied intermediate level scrutiny to the limited time, place and manner restrictions on the right to intrastate travel imposed by the [anti-cruising] ordinance at issue, there are substantial grounds to hold that strict scrutiny should apply to the stay-at-home provisions of Defendants' orders. The intrusions into the fundamental liberties of the people of this Commonwealth effectuated by these orders are of an order of magnitude greater than any of the ordinances examined in right to travel cases, loitering and vagrancy cases or even curfew cases.

Defendants' stay-at-home and business closure orders subjected every Pennsylvanian to a lockdown where he or she was involuntarily committed to stay-at-home unless he or she was going about an activity approved as an exception by the orders. This is, quite simply, unprecedented in the American constitutional experience. The orders are such an inversion of the usual American experience that the Court believes that no less than the highest scrutiny should be used.

However, the Court holds that the stay-at­-home orders would even fail scrutiny under the lesser intermediate scrutiny used by the Third Circuit in Lutz. A critical element of intermediate scrutiny is that the challenged law be narrowly tailored so that it does "not burden more conduct than is reasonably necessary." The stay-at-home orders far exceeded any reasonable claim to be narrowly tailored.

Defendants' orders subjected every Pennsylvanian to a lockdown where he or she was involuntarily committed to stay-at-home unless he or she was going about an activity approved as an exception by the orders…. When in place, the stay-at-home order requires a default of confinement at home, unless the citizen is out for a purpose approved by Defendants' orders. Moreover, this situation applied for an indefinite period of time. This broad restructuring of the default concept of liberty of movement in a free society eschews any claim to narrow tailoring.

In addition, the lack of narrow tailoring is highlighted by the fact that broad, open-ended population lockdowns have never been used to combat any other disease. In other words, in response to every prior epidemic and pandemic (even more serious pandemics, such as the Spanish Flu) states and local governments have been able to employ other tools that did not involve locking down their citizens. Although it is the role of the political branches to determine which tools are suitable to address COVID-19, the 2017 CDC guidance highlights the fact that governments have access to a full menu of individual and community interventions that are not as intrusive and burdensome as a lockdown of a state's population.

Finally, the Court observes that the suspension of the operation of the stay-at-home order highlights that it "burdens more conduct than is reasonably necessary." In other words, Defendants are currently using means that are less burdensome to the rights of a free people.

The Court declares, therefore, that the stay-at-home components of Defendants' orders were and are unconstitutional. Broad population-wide lockdowns are such a dramatic inversion of the concept of liberty in a free society as to be nearly presumptively unconstitutional unless the government can truly demonstrate that they burden no more liberty than is reasonably necessary to achieve an important government end. The draconian nature of a lockdown may render this a high bar, indeed.

The court also held that the challenge to the stay-at-home order is not moot, even though it has been "suspended," because it hasn't been withdrawn outright and may yet be reinstated. I'm not sure whether the court's decision, either on the substance or the mootness, was sound, but I thought it worth passing along. I also have a separate post on the court's striking down the business shutdown order.