Governments can’t use COVID-19 as an excuse for arbitrary and unconstitutional policies

June 11, 2020 | By LARRY SALZMAN
Covid 19 shutdown

Throughout the COVID-19 pandemic, many people have been asking questions like “are lockdowns constitutional?” “What is the government’s role in a pandemic?” This week, Pacific Legal Foundation filed a lawsuit in Connecticut challenging unconstitutional policies enacted in the wake of the COVID-19 pandemic.

Until today, PLF has not filed lawsuits challenging shutdown and other emergency orders. As the country has struggled to flatten the curve of infections, our primary strategy has been challenging new laws enacted under cover of the crisis that create shortages of medical services or impede the innovation and production necessary to rebuild our economy.

But as the shutdown orders have continued and been extended, we have seen government officials apply lockdown orders or implement “reopening” plans in unfair and unconstitutional ways. We have filed this case because, even when responding to a pandemic, government must respect constitutional rights and the rule of law.


The legal landscape of shutdown challenges

Even though many lawsuits filed around the country have challenged lockdown orders, few have been successful. The few suits that have succeeded in ending lockdowns have relied either on separation of powers provisions of state constitutions that limit the authority of governors and public health officials, or shutdown orders that violate activities protected by the Bill of Rights, like freedom of religion. But many more cases involving the closure of businesses have lost at least their first round of litigation, failing to get immediate relief.

One reason so many lawsuits have failed is that courts provide more substantial protection to some constitutional rights than others. For example, officials may not restrict someone’s First Amendment freedom of religion unless the government proves that the restriction is needed to protect a “compelling state interest” and the restriction is “narrowly tailored” to achieve that interest. If the government could preserve public health by enforcing social distancing at church, or requiring attendees to wear face masks, officials must ensure the restriction is the “least restrictive alternative” consistent with public health.

However, when courts review regulations affecting business activities, they typically presume regulations are constitutional unless the challenging citizen can show that the regulation is not rationally related to any legitimate governmental goal. To pass judicial muster, government doesn’t have to show that it is using the “least restrictive alternative,” but merely that it is rational for one to think that whatever restriction they impose furthers the goal of public health. That’s a high barrier for a challenger to overcome. In modern times, courts typically strike down economic regulations relating to health or safety only when they are so arbitrary or discriminatory that they lead to absurd results.

Nevertheless, government’s emergency powers have limits. Most courts sustaining the lockdowns have been guided by Jacobson v. Massachusetts, the 1905 U.S. Supreme Court case upholding compulsory vaccination. Even while upholding the vaccination order, the Court didn’t endorse unlimited power for the government. The decision stated that if governments carried out a vaccination order “in such an arbitrary, unreasonable manner, or [went] so far beyond what was reasonably required for the safety of the public,” then the courts would need to “interfere for the protection of such persons.” And in Jew Ho v. Williamson, which nullified a lockdown of San Francisco early last century, an appellate court said “it does not at all follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exertion of the police powers of the state.”

The analogies to old vaccination cases are becoming increasingly strained as state lawmakers are shifting their justifications for continued shutdown orders from “flattening the curve” to waiting months or even years until the disease is eradicated.

It is one thing to close businesses briefly to assess and understand a new disease. It is another to paralyze economic activity indefinitely, empowering governors or administrative agency officials to centrally plan an economy’s reopening using arbitrary, unfair, or unequally applied rules.

For instance, in Connecticut, the state’s reopening plan allows hair salons, retail stores, and many other businesses to reopen with certain safety protocols. But if you own a nail salon in Connecticut, you must remain closed, even if you are able to operate using the same protocols of safety and sanitation. A nail salon owner—represented by PLF—is challenging this arbitrary policy in Connecticut and asking the state to allow the salon to open now to avoid going out of business permanently.


Fighting for our rights in a COVID-19 world

Historically, courts have permitted governments to prevent the spread of disease by quarantining infected or exposed individuals, not locking down whole states. While quarantines are sometimes necessary, when instituting them the state should always assess individual risks and consider less-restrictive alternatives. As one New Jersey court has written, the “decisive consideration where personal liberty is involved is that each individual’s fate must be adjudged on the facts of his case, not on the general characteristics of a ‘class’ to which he may be assigned.” Constitutional principles, the court stated, “guard against the risk that governmental action may be grounded in popular myths, irrational fears, or noxious fallacies rather than well-founded science.”

The COVID-19 pandemic has impacted nearly every aspect of people’s lives worldwide and officials have had to take action under conditions of uncertainty. But as the world begins to open up safely again, a respect for individual rights requires that government agencies also respect constitutional limits on their power.