The longer the lockdowns last and the less necessary that they seem, the more scrutiny courts will apply.
State governors from coast to coast issued coronavirus-related lockdown orders about two months ago, closing businesses and restricting people’s movements. Government officials have taken unprecedented steps, seemingly without much calculation or forethought. In New York, for instance, Governor Andrew Cuomo insisted on March 18 that he would not approve a shelter-in-place order; by March 20, he praised California’s lockdown and announced Gotham’s own stay-at-home regime. New York and many other states have extended these orders indefinitely.
The reasons for the lockdowns have shifted. Initially aimed at “flattening the curve”—slowing the rate of infection to avoid overwhelming hospitals—shutdowns keep getting extended, even as medical workers are furloughed and temporary field hospitals (set up to handle a surge in cases) are dismantled. Officials have leaned haphazardly on broadly worded and mostly untested “emergency powers” statutes to justify whatever policies they deem necessary.
The command-and-control mode of leadership has struck many Americans as contrary to limited-government principles. As layoffs and business failures mount, my organization, the Pacific Legal Foundation, is hearing from people across the country frustrated by the lack of clear exit plans from their elected officials. They ask: Why can’t we sue our way out of the lockdowns?
Many have tried. I’ve looked at roughly 60 cases filed in the past two months challenging orders around the country, though there are surely more. A few suits have resulted in the striking down of lockdown orders, at least in part. Many more have lost at least their first round of litigation, failing to get immediate relief.
On the winning side, the Wisconsin Supreme Court struck down the state’s stay-at-home order, citing the separation of powers. Wisconsin governor Tony Evers had issued an order that granted nearly limitless power to a Department of Health official, who closed much of the state’s economy. The high court ruled that this was too much power delegated to one official, and, furthermore, “in the case of a pandemic, which lasts month after month, the Governor cannot rely on emergency powers indefinitely.” Similarly, trial courts in Illinois and Oregon have voided their state’s lockdowns—at least temporarily—for extending beyond the time required to get legislative assent.
Other winning cases have struck down shelter-in-place orders not in their entirety but as they apply to constitutionally protected activities. Notable examples include the right to attend church services in Kentucky, the right to sell firearms in Massachusetts, the right to get an abortion in Texas and Oklahoma, the right to appear as a candidate on a ballot in a New York primary election—and the right of the state to hold such an election. We can expect more of these to succeed, especially cases founded on the First Amendment and involving the right to protest, assemble, or to attend religious services.
Yet a larger number of cases filed to date have not fared as well. Courts have rejected numerous lawsuits demanding just compensation under the “takings clause” of the Fifth Amendment for various reasons: the harm is temporary; the damage is as yet speculative, and so the cases are premature; or the losses fall within health-and-safety exceptions to the takings clause and do not require compensation.
Other cases argue that the lockdowns violate rights protected by the due-process or equal-protection clauses of the U.S. or state constitutions—a right to receive elective medical procedures, a right to travel, a right to a hearing to contest the designation of one’s business as non-essential. These constitutional principles prohibit the government from restricting liberties for arbitrary or discriminatory reasons. Judges have mostly rejected these claims, though, ruling that lockdown orders are a permissible use of states’ “police powers”—the authority traditionally given to state government to protect health and safety. In short, courts have mostly been reluctant to second-guess lockdown orders aimed at protecting public health at a time of great uncertainty.
It’s notable, however, that the reflexive deference that courts have given to executive officials during this period rests on expansive—and increasingly suspect—analogies to past quarantines. Never before has the government shut down entire states without distinguishing between healthy, exposed, and infected persons. Historically, courts permitted the restriction of movement or liberties of affected individuals, not whole states, and only after an assessment of the person’s risk and consideration of 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 “guard against the risk that governmental action may be grounded in popular myths, irrational fears, or noxious fallacies rather than well-founded science.”
Most courts sustaining the lockdowns do so with a citation to Jacobson v. Massachusetts, the 1905 U.S. Supreme Court case upholding compulsory vaccination. But in that case, the court also stated that a community’s power to “protect itself against an epidemic” might be exercised “in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.” And one federal appellate court that nullified a lockdown of San Francisco early last century ruled, in Jew Ho v. Williams, that “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.”
To date, most rulings in cases challenging the lockdowns have favored the government. But the longer the lockdowns go on and the less necessary that they seem, the more scrutiny we can expect courts to apply. As the Supreme Court put it in its Jacobson ruling, more than a century ago, a law that “purport[s] to have been enacted to protect the public health” but “has no real or substantial relation to those objects” must be found unconstitutional.
This op-ed was originally published by City Journal on May 20, 2020.