New York's COVID-19 Microcluster Whac-A-Mole Game

The ad hoc creation of red and orange zones are capable of repetition, but will evade review.


Last week I blogged about Agudath Israel's application to the Supreme Court. (I serve as co-counsel with the Becket Fund for Religious Liberty on a related case on behalf of a Jewish school in New York). On November 20, New York filed its response. And, also on November 20, New York downgraded the relevant neighborhood in Brooklyn from an orange zone to a yellow zone. The brief explains, "Consequently, there are currently no red or orange zones anywhere in New York City, and both of the synagogues for which Agudath Israel seeks relief are now located in yellow zones." As cases skyrocket throughout the country, New York removed restrictions in the very neighborhood that is currently at issue before the Supreme Court. But don't even think about leaving your home to celebrate Thanksgiving!

Agudath Israel addressed this turnabout in its reply brief:

Aware that the Cluster Initiative is in trouble, the Governor's first response in this Court is to feign retreat. On the very day his Opposition in the Diocese of Brooklyn case, No. 20A87, was due, the Governor abruptly announced that he was going to re-designate the Brooklyn zones from Orange to Yellow—even though these areas do not satisfy his own announced criteria for downgrading to Yellow, see infra 10–11—and he now says there are "no critical or exigent circumstances" to warrant relief, Opp. 17–18 (capitalization altered).

This reversal is all-too familiar. Over the past nine months of COVID litigation, there has been a familiar pattern. When a case is on the door step of the Supreme Court, the government suddenly realizes that the restrictive measures zealously defended in the lower court were no longer necessary. And, graciously, the government relaxes the policy. An optimist would praise such government flexibility. A cynic would counter that these reversals are motivated, at least in part, by a desire to moot the case. Count me in the latter camp. Alas, people of faith are stuck playing this never-ending game of Whac-a-Mole.

Fortunately, there is a way forward. The Supreme Court has recognized an exception to the mootness doctrine known as "capable of repetition yet evading review." This exception is used in the context of abortion litigation, as a pregnancy will last only nine months–not enough time to litigate a case to completion.

Here, the COVID restrictions are changed on a weekly, and sometimes daily basis. These ad hoc revisions are seldom explained with any degree of precision. And often, the government ignores its own guidance to relax restrictions before a court filing deadline. Perhaps those frequent changes reflect the fact that the policy itself is substantively valid. That is, the Governor is making changes based on evolving facts on the ground, and ultimately relief is not warranted. But the frequent changes should not deprive the Court of jurisdiction to at least assess that rationale.

True enough, the Brooklyn temples are not currently in the orange zone. But we are dealing with an "exceptional situation." Agudath Israel "can make a reasonable showing that [it] will again be subjected to the alleged illegality." City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983). Indeed, on November 20, Governor Cuomo said that all of New York City might find itself in an orange zone by early December. His Secretary said, "We determine whether or not we have to be in a position to create additional micro-clusters based on what New Yorkers do in the next week or two."

If the Court dismisses this case because of the eleventh-hour change, the Governor would be free to reimpose the exact same restrictions in two weeks. The Court should not let itself get played again by New York–especially after the state's efforts to moot New York State Pistol & Pistol Association. Here, the Court should still find the controversy is live to consider whether the Governor's policy is valid.

Update: Brett Stephens used my whac-a-mole imagery in the Times:

Another was the game of Hot Zone Whac-a-Mole that Cuomo tried to play with the court as the case was working its way through the legal system, by switching the affected areas' designations back to "yellow." That was enough to persuade Roberts and other dissenters that they could leave well enough alone, at least for now. But, as Gorsuch noted, one also has to be modest about judicial modesty: "We may not shelter in place when the Constitution is under attack. Things never go well when we do."

NEXT: Today in Supreme Court History: November 22, 1963

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  1. Am I right in thinking I can just go visit a relative in a state with fewer restrictions, because states can’t restrict interstate travel?

    1. Being cynical when it comes to governments defining their own limits, I’d say sure — if you can get to the border. But before then, you are under house arrest and fleeing, no? Used to be a common them in old movies, 1920s and 1930s, that if you could get to the county line, you could escape a sheriff, and if you could get to the state line, you could escape state police. Pretty sure that is no longer the case when in hot pursuit, although I don’t know the protocols; does your state have to extradite you from the state you were caught in, even when by your state police?

    2. Here in Commiefornia we have an utterly retarded system based on counties, some of which span the entire state. So you can have covid cases right next to Nevada shutting down places on the coast. Bizarrely we also have this weird color coding where red is less restrictive than purple, I haven’t been able to find any reasoning behind it. Counties are just locked down and released over and over again like musical chairs to the point where it would probably just be more convenient to pick a random status and just stick with it. And this is leaving aside the mess that is general lockdowns.

      This is like the most absurd parody ever in history. Its practically criminal that we don’t have thousands of writers and late night comedy hosts dashing off scripts on this because the entertainment and media industry is so utterly corrupt that they’re stubbornly focusing on another lame Trump joke.

    3. Yes and no.

      States have been attempting to put restrictions on interstate travel (for example, quarantine requirements if you aren’t just passing through).

      With your specific example, going to a state with few restrictions should be fine, however you may have problems on returning home if your state has enacted quarantine requirements for travelers.

  2. NYC spends a lot of taxpayer dollars baiting others into spending their own money before backing down to ostensibly moot a case. Taxpayers pay twice – and NYC comes back with a slightly different tack yet again. Legal? Often. Ethical? Depends on if your ends support the means, I guess.

  3. NY’ers deserve to suffer needlessly for their awful taste in voting.

  4. I’m sorry but this ongoing story strikes me as stupid on many levels.

  5. And now much of Europe is ahead of the US in terms of death rate. I guess this whole blanket lockdown business was entirely pointless after all. But the election is over so who cares anymore.

  6. ” This exception is used in the context of abortion litigation, as a pregnancy will last only nine months–not enough time to litigate a case to completion.”

    Which is rather astonishing when you think about it. We can create human life from scratch in less time than it takes to resolve a court case.

    1. Things like sugar, water, and making babies would be banned if they had to go through the all-knowing regulatory process of those of high wisdom.

  7. Right on Josh … keep up the good fight!

  8. I would like to see what standards you would hold the government to, when the facts as to the virus change so frequently. What the court might hold the government to, might be invalid next month, when perhaps new facts about virus transmission emerge, or maybe the availability of vaccines or other new remediate measures. This is not like someone’s pregnant, then not pregnant, then pregnant again.

    1. Well, geez, if the science is so unsettled that the current regulation is going to be obsolete and rescinded by the time a Court hears it, then maybe it’s not such a good idea in the first place.

    2. That’s easy. Assume the facts as they exist at a point in time – perhaps when the lawsuit is filed. Based on what the governor knew at that time, would the particular restriction have been legal? If no, not only is that particular restriction lifted but it cannot be reimposed until/unless there is new information that substantively changes the invalidated reasoning.

  9. This is a familiar pattern, not just in Covid cases, didn’t New York just do something similar in a Second Amendment case?

    1. Yes and the article already links to New York State Pistol & Pistol Association. See the bottom paragraph.

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