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July 27, 2021 Feature

Constitutional Long Haulers: The Undiagnosed Long-Term Impact of Judicial Review on Emergency Public Health Orders

By Justice David K. Thomson

A limit in time, to tide over passing trouble, well may justify a law that could not be upheld as a permanent change.”1 Disputes over emergency orders designed to control COVID-19 require us to examine the government’s authority to act in response to a crisis. The judiciary has played a significant role in resolving these disputes. As a result, litigation over public health orders (COVID-19 litigation) reveals important questions surrounding separation of powers, lawful delegation of authority, and the judiciary’s role in ensuring against encroachments by the co-equal branches of government onto constitutional guarantees. It is a complex and evolving analysis. Much like the virus itself, these disputes have undiagnosed, long-term consequences on our democratic system. In addition, they may have lingering impacts on the manner and level of scrutiny courts apply to legislative directives or executive decisions.

Our society is making important strides toward returning to normal, or navigating a new normal. I understand many in the legal profession have COVID-19 fatigue. That said, I maintain that it is worth discussing how we examine laws meant “to tide over passing trouble” and understand the judiciary’s role as it relates to other branches of government in the process. As a result, we improve public confidence in a system whose goal it is to keep the public safe while protecting individual and collective liberty.

In the spring of 2020, as COVID-19 began to emerge, so did the litigation challenging the government’s response. Some of the early challenges to public health orders focused on quarantine requirements and their impact on commercial interests.2 As the year progressed, disputes arose between branches of government challenging the delegated authority to address public health orders, or challenging directly the constitutional legitimacy of the legislation granting such authority.3 Another significant category of COVID-19 litigation surrounded capacity limits. Especially relevant are those cases brought in the context of religious gatherings. The Supreme Court’s evolving analysis, from Calvary Chapel,4 to Roman Catholic Diocese of Brooklyn5 and Tandon,6 requires a separate and lengthier article. However, these cases do highlight a need to examine the judiciary’s views on governmental restrictions as they apply to the right asserted and the scrutiny applied. In addition, as these cases reveal, because COVID-19 litigation is often disposed of on application for preliminary injunction, additional questions of deference, factual development, and process are raised. The goal of this short article is to build a framework for further conversation and study. The start of this conversation will benefit from some historical perspective.

Public health emergencies are not the only context where we have studied the government’s authority to restrict some of our individual and collective rights in order to make us safe. In a wide variety of constitutional contexts, courts have found government concerns about “public safety and the lives of all its citizens” enough to justify restrictions on individual liberties.7 More recently, for example, the Supreme Court heard oral argument on the “community caretaking exception” to the Fourth Amendment that addresses the difficult question of whether a warrantless entry into a home is permissible if the officer has immediate concerns for the well-being of the occupant.8 In it, they will decide how to balance the desire to protect the safety and well-being of the home’s occupant against alleged erosion of Fourth Amendment protections. Outside of the exigencies of a crisis, governmental restrictions have been upheld in constitutional challenges for interests equal to or greater than those that are subjects of COVID-19 litigation, including limitations on voting rights and limitations on the protections against unlawful search and seizure.9

We turn then to what current and relevant concerns are raised by COVID-19 litigation and the government’s public health and safety determinations. In my view, this litigation exposes concerns about broadly written statutes where the government’s expansive emergency authority to enact restrictions is tethered only to its subjective belief that its actions are reasonable. In addition, there is often debate concerning the facts that form the basis of the declared emergency and the facts that form the basis of the government’s response. Finally, both of these concerns are complicated by the expediency of the litigation and disputes over the deference allowed to government officials managing the crisis.

Much of what has been used to justify executive action is couched in terms of broad “emergency” or “inherent authority.” Justice Jackson in the Youngstown decision warned, “Loose and irresponsible use of adjectives colors all non-legal and much legal discussion of presidential powers. ‘Inherent’ powers, ‘implied’ powers, ‘incidental’ powers, ‘plenary’ powers, ‘war’ powers and ‘emergency’ powers are used, often interchangeably and without fixed or ascertainable meanings.”10 This “loose” use of adjectives to justify an executive’s response, combined with the language of broad enabling statutes, creates a level of uncertainty as to where the authority begins and ends.

When a crisis first erupts, the question of whether the executive branch has exercised its police or emergency powers within the structures of the Constitution may be obscured because the need to immediately address a life-threatening situation does not necessarily allow for a full, open debate concerning all the possibilities to arrive at a best and clearly constitutional response. At some point, as the crisis continues, authority to act might straddle two branches of government. In addition, as time passes, the judiciary’s deference to those branches of government might begin to wane. On this point, I borrow again from Justice Jackson and his apt use of the term zone of twilight. In Youngstown, he states that when the executive acts absent a clear grant of authority or a clear denial of authority, the executive “can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.”11

A point may be reached at which the state of emergency is no longer an immediate crisis but a managed and regulated one. Extending Justice Jackson’s analysis concerning the semi-permeable boundary between the proper exercise of federal executive and legislative power to state government, the exercise of state executive power during a crisis or emergency may likewise fall within a zone of twilight, where the power to act is not the sole province of one branch of government. As the crisis continues, the boundary between the executive and legislative branches become, in Justice Jackson’s words, “semi-permeable.”

Our democratic institutions must learn to distinguish between an emerging crisis and a managed crisis. They should expect that in the former the justification for the executive’s broad emergency authority is greatest, and the latter is when it begins to dim. This does not suggest that the power to act should be eliminated; rather, there should be a limit on the power to act without justifiable rationale. In addition, the rationale requires transparency. On this point, the legislature may choose to assert its role as a policymaker. In fact, there appears emerging efforts at the state level to establish legislative oversight over executive powers.12 In the alternative, lawmakers may create more robust administrative procedures to control the governmental decision-making, including judicial review. The judiciary, for its part, must renew its commitment to support the best means of arriving at empirical fact. This is especially important in our review of public health emergencies involving a pandemic. Deference to agency determinations as well as a robust and expedited means of testing those conclusions would advance this goal.

The demand for judicial review of the executive’s declared emergency, declared means to end the emergency, and the basis for both as it relates to the end requires reliable facts that are developed transparently. Justice Cardozo stated in Ohio Bell Telephone Co.:

From the standpoint of due process—the protection of the individual against arbitrary action—a deeper vice is this, that even now we do not know the particular or evidential facts of which the Commission took judicial notice and on which it rested its conclusion. Not only are the facts unknown; there is no way to find them out. When price lists or trade journals or even government reports are put in evidence upon a trial, the party against whom they are offered may see the evidence or hear it and parry its effect. Even if they are copied in the findings without preliminary proof, there is at least an opportunity in connection with a judicial review of the decision to challenge the deductions made from them.13

During a longer-term crisis, the ability of the public to know and parry the facts upon which the government acts strengthens rather than weakens our constitutional structure. This opportunity for public review does two things. First, it provides a way that the public can see and understand the basis for the government’s action in a clear way. Second, it encourages judicial review based on a verified and observable basis and not theory or comparative logic. For example, when examining capacity limits in a congregate setting, a rigorous legal analysis requires an examination of how the government treats different activities in that same congregate setting. This might inform, for example, whether these activities require a higher or lower standard of scrutiny. However, this same analysis as it applies to a contagious virus also requires a factual inquiry as to how that virus treats those within the same congregate settings, which will inform the determination of whether the government’s actions are reasonable.14

Courts may defer to the executive when reviewing an executive action taken during a public health crisis, the most deferential review being exemplified by Jacobson in the context of deference to the legislature, a case that still guides this discussion over 100 years after its publication.15 Intrinsic to the judiciary’s consideration of this question is whether the crisis or emergency upon which the executive bases its exercise of police power is legitimate and whether the executive action is reasonably related to the response to the asserted crisis or emergency.16 This recognizes, of course, where there is a “plain, palpable invasion of rights secured by the fundamental law” such as a violation of a constitutionally protected right or discrimination based on a suspect class, courts must apply the applicable level of scrutiny.17 The point is, with regard to a public health pandemic certain, the analysis should be based on scientific fact appropriately applied to the law.

Jacobson instructs,

There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.18

Dealing with the long-term effects of COVID-19 on the way we view government responses to emergency is a struggle. Close examination of it is warranted so that perhaps we can identify policies and processes that better define the boundaries between governmental institutions and improve future approaches and public trust.


1. Block v. Hirsh, 256 U.S. 135, 157 (1921) (J. Holmes).

2. Bayley’s Campground, Inc. v. Mills, 2021 WL 164973 (1st Cir. Jan. 19, 2021) (addressing allegations through applications for preliminary injunction that the self-quarantine requirement violated the federal constitutional right to interstate travel as well as their federal constitutional right to procedural due process).

3. In re Certified Questions from U.S. Dist. Ct., W. Dist. of Mich., S. Div., 2020 WL 5877599 (Mich. Oct. 2, 2020) (first, the governor did not possess the authority under the Emergency Management Act of 1976 (the EMA), Mich. Comp. L. § 30.401 et seq., to declare a “state of emergency” or “state of disaster” based on the COVID-19 pandemic after April 30, 2020; and second, the governor does not possess the authority to exercise emergency powers under the Emergency Powers of the Governor Act of 1945 (the EPGA), Mich. Comp. L. § 10.31 et seq., because that act is an unlawful delegation of legislative power to the executive branch in violation of the Michigan Constitution (concluding that Palm’s order confining all people to their homes, forbidding travel, and closing businesses exceeded the statutory authority of Wis. Stat. § 252.02 upon which Palm claims to rely)).

4. Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2615 (2020).

5. Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 81 (2020).

6. Tandon v. Newsom, No. 20A151, 2021 WL 1328507 (U.S. Apr. 9, 2021).

7. United States v. Salerno, 481 U.S. 739, 748 (1987) (“We have repeatedly held that the Government’s regulatory interest in community safety can, in appropriate circumstances, outweigh an individual’s liberty interest.”).

8. Caniglia v. Strom, 141 S. Ct. 870 (2020) (petition for writ of certiorari to the U.S. Court of Appeals for the First Circuit granted).

9. See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (explaining that “constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”); see also Burdick v. Takushi, 504 U.S. 428, 433 (1992) (“whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects—at least to some degree—the individual’s right to vote and his right to associate with others for political ends”); see also State v. Widmer, 461 P.3d 881, 883 (N.M. 2020) (affirming the ruling of the district court “that the Quarels public safety exception applied [] because of the need to determine whether Defendant was armed or carrying potentially harmful drug paraphernalia before officers performed a pat-down search”).

10. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 646–47 (1952).

11. Id. at 637 (noting that presidential powers “are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress”) (emphasis added).

12. Legislative Oversight of Emergency Executive Powers, Nat’l Conf. of State Legislatures, (last visited Apr. 21, 2021).

13. Ohio Bell Tel. Co. v. Pub. Utilities Comm’n of Ohio, 301 U.S. 292, 302–03 (1937).

14. Community Congregate Settings, Ctrs. for Disease Control & Prevention, (last visited May 6, 2021).

15. See Jacobson v. Commw. of Mass., 197 U.S. 11, 12 (1905).

16. See Mitchell v. City of Roswell, 111 P.2d 41, 44 (N.M. 1941) (“It is the policy of the courts to uphold regulations intended to protect the public health, unless it is plain that they have no real relation to the object for which ostensibly they were enacted, and prima facie they are reasonable.”); cf. Jacobson, 197 U.S. at 30 (“If there is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that which the legislature has done comes within the rule that, if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects.”) (describing judicial review of legislative action, rather than executive action).

17. Jacobson, 197 U.S. at 31; see also Roman Catholic Diocese of Brooklyn v. Cuomo, 2020 WL 6948354, at *5 (U.S. Nov. 25, 2020) (Gorsuch, J., concurring) (noting the Jacobson Court “essentially applied rational basis review”).

18. Jacobson, 197 U.S. at 26.

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By Justice David K. Thomson

Justice David K. Thomson serves on the New Mexico Supreme Court and is an executive committee member on the Appellate Judges Conference of the ABA Judicial Division. He is developing a program focused on issues raised in litigation surrounding public health orders.