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As we welcome 2021, the COVID-19 pandemic that has dominated our lives for nearly a year has brought unprecedented uncertainty and consequences to our families, businesses and communities, and will continue to present legal issues as federal, state, and local government agencies persist with actions to protect the health and safety of the American public. Most of the governmental actions have come in the form of executive orders, in which the president, governors, mayors, and other leaders cite to powers granted to them by legislative bodies to act in times of “emergency.” But, nearly one year later, is COVID-19 still a public health “emergency”?
The declaration of a national “state of emergency” by President Trump in mid-March 2020 signaled that government agencies would commence efforts to assist with control of the pandemic and to protect the country’s health and welfare. This declaration was accompanied by similar actions undertaken by nearly every governor and many local officials, many of whom shut down businesses, places of worship, and other facilities for months, raising claims around the nation that constitutionally guaranteed individual liberties were being improperly limited and restricted. But, with few exceptions, legal challenges to executive “shut down” orders were themselves shot down by courts around the country. However, there are recent signs that, as the pandemic endures, the tide may be beginning to turn, as the judiciary has begun to scrutinize the scope and extent of the restrictions imposed by executive mandates.
As the U.S. Supreme Court has made clear, the Fifth Amendment to the U.S. Constitution was designed to “bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. U.S., 364 U.S. 40, 49 (1960). The Court has also reminded us that the existence of an emergency cannot change the protections afforded under the Constitution, a document which was itself created during a period of “grave” emergency. Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398, 425 (1934). While an emergency does not create power, an emergency may furnish the occasion for the exercise of power. Id. at 425–26.
Notwithstanding these bedrock principles of Constitutional law, nearly every judicial challenge to the exercise of emergency power was unsuccessful in 2020. Until the fall of 2020, the exceptions were few and included the following:
- A 4–3 decision by the Wisconsin Supreme Court, in litigation brought by a Republican-led legislature to invalidate executive orders by its Democratic governor, on the basis that the order was too long in duration and thus could not cover “emergencies.” This decision resulted in having many local Wisconsin agencies issue their own orders, which rendered the impact of the court’s opinion mostly moot. Wisconsin Legislature v. Palm, 942 N.W.2d 900 (2020).
- An Oregon state trial court judge’s vacation of its governor’s shutdown orders, which action was reversed later the same day and was reversed by the Oregon Supreme Court in a per curiam decision. Elkhorn Baptist Church, et al v. Brown, 466 P.3d 30 (Or. 2020).
- A decision by a judge in the U.S. District Court of the Western District of Pennsylvania, in litigation brought by a group of plaintiffs including several local government agencies, political officials and private businesses, invalidating Pennsylvania Governor Tom Wolf’s executive orders on the bases that (a) the closure of non-life-sustaining businesses violated the Due Process and Equal Protection Clauses of the Constitution and (b) the restrictions on the sizes of gatherings violated the First Amendment. Cnty. of Butler v. Wolf, Civil Action No. 2:20-cv-677 (W.D. Pa. Sep. 14, 2020).
To wit, the rest of the known legal challenges to the imposition of restrictions on our liberties, which orders have forced the closure of myriad business and properties around the country, have been swiftly and uniformly dismissed by both state and federal courts; or are mired in procedural purgatory, because preliminary injunctions were denied due to a failure to satisfy traditional injunctive relief standards, causing those matters to lie idle in courts that are not fully operational and have ever-increasing backlogs of “more important” matters on their dockets. This across-the-board refusal by the judiciary to invalidate, or even chip away at the impact of, “emergency” executive orders was even adopted by the U.S. Supreme Court in its first review of a COVID-19 shut-down order in May 2020, when the Court denied an application by several California religious institutions to enjoin the enforcement of executive orders that restricted attendance at places of worship to 25 percent of building capacity or a maximum of 100 attendees. In South Bay United Pentecosal Church v. Newsom, 590 U.S.__ (2020), the Court held—in a 5–4 decision with Chief Justice Roberts casting the deciding vote in his concurrence—that the health and safety of the people is entrusted by our Constitution to “politically accountable officials of the States,” and their actions should not be subject to second-guessing by an “unelected federal judiciary,” which lacks expertise in public health and “is not accountable to the people.” Slip op at 2. Based on this decision, it seemed that the Court was likely to stay out of these matters, as was confirmed in a similar lawsuit challenging a Nevada restriction on religious gatherings, which also was denied injunctive relief in July 2020. See Calvary Chapel Dayton Valley v. Sisolak, 591 U.S. __ (2020).
While the earlier challenges to California and Nevada orders limiting religious gatherings failed, a similar lawsuit filed by Catholic and Jewish houses of worship in New York recently fared much better. In Roman Catholic Diocese of Brooklyn, et als v. Cuomo, 592 U.S. ___ (2020), the Supreme Court granted the application for injunctive relief in a 5–4 per curiam opinion on November 25, 2020. The majority opinion noted that Governor Andrew Cuomo’s executive order, which placed 10- and 25-person occupancy limits on religious services in different “zones” in New York, unfairly restricted religious gatherings, while businesses in the same zones, such as certain types of retail stores, acupuncture facilities, garages, and campgrounds, were classified as “essential” and had no restrictions. The Court found that these restrictions were not “narrowly tailored,” and would cause irreparable harm in denying individuals their First Amendment rights to freedom of religious expression. Slip Op. at 3–5. Justice Gorsuch’s concurrence went further, stating “at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?” Gorsuch concurring op. at 2. He also found that, in Governor Cuomo’s judgment, “laundry and liquor, travel and tools, are all essential while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids.”
Justice Kavanaugh also concurred, incisively concluding that New York’s religious restrictions were more severe than most other states’ restrictions and were discriminatory to the religious institutions in favor of businesses that could be next to a church or synagogue, with no restrictions whatsoever. See Kavanaugh concurring op. at 1–2.
What changed between May and November, causing the “same” Court to rule differently on strikingly similar cases? One obvious change was a different Court composition due to the death of Justice Ruth Bader Ginsberg and appointment of Justice Amy Coney Barrett in her place. The “swing” vote of Chief Justice Roberts in the earlier two matters was not needed in November, where he joined the minority dissent. But was there more at play here than just a change of personnel? Justice Gorsuch’s concurring opinion in Roman Catholic Diocese studies the Court’s 100-year-old opinion issued during a prior public health emergency, Jacobson v. Massachusetts, 197 U.S. 11 (1905). Jacobson involved a challenge to a state law that required individuals to take a smallpox vaccine or to pay a fine. The Court there applied a “rational basis” review to determine whether the law was reasonable and upheld the law because it offered citizens the right to pay the fine or to establish that they were qualified for an exemption if they refused the vaccine. As Justice Gorsuch reasoned, Jacobson “hardly supports cutting the Constitution loose during a pandemic,” and the different nature of the restrictions on religious gatherings—all-out bans on forms of worship—threatened the very core of settled Constitutional rights. Gorsuch concurring op. at 4–5. His view was aptly summarized, as follows:
Why have some mistaken this Court’s modest decision in Jacobson for a towering authority that overshadows the Constitution during a pandemic? In the end, I can only surmise that much of the answer lies in a particular judicial impulse to stay out of the way in times of crisis. But if that impulse may be understandable or even admirable in other circumstances, we may not shelter in place when the Constitution is under attack. Things never go well when we do. [Gorsuch concurring op. at 5–6]
Regardless of the Court’s composition, does the Roman Catholic Diocese decision signal that the tide may be turning as the pandemic endures, and that more and more courts will refuse to “stay out of the way” in the future? As an example, shortly after the Roman Catholic Diocese opinion was issued, the Supreme Court issued an order in another matter. Robinson v. Murphy, Civil Action 2:20-cv-5420-CCC-ESK (D.N.J. 2020), involved a similar challenge to New Jersey Governor Philip D. Murphy’s executive order restricting religious gatherings. The challenge had been dismissed by the U.S. District Court in the spring of 2020 but was now remanded by the Supreme Court for “further consideration,” considering the Roman Catholic Diocese opinion. Others are nearly certain to follow.
Will the restrictions imposed be increasingly scrutinized as time passes, on the basis that our courts may realize that the powers granted to an elected politician that are reserved for “emergencies” should not apply when the emergency is over? Many legislative authorizations themselves define the duration of an emergency precisely for this purpose—to make sure that the executive branch does not abuse its powers. As time passes, any remedial measures that need to be continued or undertaken to protect health and safety of individuals should fall within the province of the legislature to make new laws when time permits, not the executive branch, which the legislature has empowered to act in emergencies when time is short. And, finally, even if these measures are upheld by our courts, whether they are implemented by executive order or legislative action, will our courts begin to more carefully scrutinize whether the actions and restrictions violate constitutional rights, such as due process or equal protection, or otherwise infringe on rights such as First Amendment rights? And, even if they are not determined to violate such rights, will courts begin to analyze whether such actions, even if “permitted,” constitute compensable takings? After all, the limitations on government power in its use of eminent domain rely on the principle that even where seizures of personal property benefit or otherwise serve the public good, the burden of obtaining those benefits should be placed on the public, not the individual property owners who are directly affected. That is what the doctrine of just compensation is intended to address and make fair.
The limits of executive power or legislative power are supposed to be reviewed by our courts. And, more specifically, the judicial review of the actions of the executive branch of governments—whether federal, state, or local—is not limited to whether that branch went too far and exceeded its own powers relative to the other branches of government. Judicial review also applies to the question of whether state or local government has acted in violation of the principles of federalism and in violation of the Constitution. With this principle in mind, as time unfolds, we should expect that more courts will be examining whether executive orders exceed their own powers, or improperly restrict or infringe on rights that no legislative or executive action is allowed constitutionally to violate—at least not without making sure that the loss occasioned upon those directly affected is not borne by those individuals, but rather by the public at large.
Anthony F. DellaPelle is a shareholder with McKirdy, Riskin, Olson & DellaPelle, PC, in Morris Plains, New Jersey.
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