Key Takeaways:

• Although the federal government itself has the authority to promulgate regulations aimed at preventing the spread of communicable diseases, the decision on how to respond to the COVID-19 pandemic has largely been left to the states.

• The measures enacted by the states have varied, but the ultimate goal is to maximize public safety while limiting economic fallout. Measures are generally oriented toward the goals of: (1) stopping the spread of COVID-19 by implementing social distancing and face covering measures and suspending non-essential activities; (2) protecting the supply chain; and (3) maintaining hospital capacity.

• The government has well-established and expansive authority to issue executive orders aimed at curbing the spread of infectious diseases.

• Executive authority is not absolute, and it is not clear what test courts are to apply based on legal precedent when analyzing the constitutionality of any given COVID-19 executive order. Current challenges to states’ COVID-19 responses raise a number of unsettled issues.

1.   Introduction

With the staggering economic impact of the pandemic mounting and general disquiet over continued limitations on freedom of movement and normal activities rising, courts are seeing numerous challenges to state and local executive orders aimed at curbing the spread of the COVID-19 pandemic. Reports indicate that nationally over 700 lawsuits have been filed challenging orders restricting social movement, public conduct, gatherings and non-essential business.[1]   Recently, for example, a federal court in Connecticut rejected a petition brought to enjoin the application of Connecticut’s executive order limiting the size of social and religious gatherings, and other restrictions on travel.[2] 

These cases bring to the forefront questions relating to the constitutional limitations on governmental authority to limit social and economic activity in the interest of the preservation of the health of the general public.  Indeed, even in an emergency, neither federal nor state governments may grant themselves any new powers—they may only unlock powers that normally lie dormant.[3]  The government’s specific power to quarantine, isolate, and take other emergency measures to protect the public health and welfare, however, are well-established. But with very few recent disease outbreaks, these powers have been generally untested in recent years.  As a result, court rulings deciding current challenges to states’ COVID-19 responses may further refine theses powers.

2.   COVID-19 Public Health Emergency Measures: State Restrictions on Conduct, Gatherings, Operations, Social Distancing, Face Covering Requirements and Travel Restrictions

Although the federal government itself has the authority to promulgate regulations aimed at preventing the spread of communicable diseases from state to state under the Public Health Service Act of 1944 (“PSHA”)[4] and other federal laws, the decision on how to protect the public health in response to the COVID-19 pandemic has largely been left to the states.[5]

States and local jurisdictions, primarily the executive branch, have taken varying degrees of emergency action to restrict human contact and slow transmission by either imposing restrictions on physical gatherings, or requiring the use of protective gear such as face coverings at gatherings or inside buildings.  Early in the pandemic, public health officials prioritized protecting the supply chain of necessary protective equipment (PPE) for frontline health care workers, and instituted sweeping stay-at-home orders[6].  However, the economic downturn resulting from the stay-at-home orders were felt immediately and governments began looking for ways to safely reopen the economy.  The shutdowns allowed PPE suppliers to increase production, and restrictive measures expanded from limiting capacity at essential and non-essential businesses to allowing more interaction but requiring face coverings.  An additional measure taken by many states has been to implement travel quarantines.  

Restrictive measures limiting gatherings have varied.[7]  California has the most restrictions, while West Virginia and Alaska have none.  A great deal of attention has been given to restricting activities of bars and restaurants limiting indoor service and, in almost all states, spectator sports, concerts, and nightclubs are restricted along with normal operations of gyms, personal-care businesses (such as salons).  Most states are limiting gathers to under 25 people.

As for face covering and social distancing requirements, which are now understood to be effective measures in containing the spread of COVID-19[8], the majority of states require face coverings in many settings.  A typical requirement mandates wearing a face covering indoors in public buildings or for outdoor gatherings with 10 or more people and often specifically when people cannot maintain a distance of six feet or more from others.  As of the date of publication, only Alaska, Idaho, Iowa, Missouri, Oklahoma, South Carolina, South Dakota, and Tennessee do not require face coverings.

States have also implemented self-quarantine rules for travelers visiting or returning to their state when the traveler is coming from a COVID-19 hotspot, currently typically identified to include about 20 jurisdictions.[9] 

These broad and varying requirements aimed toward disease containments fall within the states’ police power and responsibility for public health.  Many of the restrictions, however, have come under scrutiny and challenge from state legislatures, private citizens, and religious organizations

3.   Authority to Issue COVID-19 Public Health Measures

States have broad authority to protect their citizens from a pandemic under their “police powers” reserved by the Tenth Amendment.[10] Over 100 years ago in Jacobson v. Commonwealth of Massachusetts—the seminal case concerning state authority to combat the spread of communicable diseases—the Supreme Court held such powers are uniquely broad during a public health emergency and largely without interference from the courts.[11]   There, the Court upheld a state statute authorizing local health boards to require adult residents receive smallpox vaccinations and stated “the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety” because when a disease threatens the safety of a community’s residents, the community “has the right to protect itself.”[12]

Jacobson makes clear that, when a state is faced with an emergency in the form of a dangerous communicable disease, even “[i]ndividual constitutional rights are malleable.”[13]  In other words, in an effort to combat against a pandemic, a state may implement emergency “quarantine laws and health laws of every description” aimed at protecting public health even if those measures limit other constitutional rights.[14]  For example, the Supreme Court’s ruling in Jacobson has been used to restrict a woman with leprosy (who was not dangerous and only slightly contagious) to her home and eventually forcing her to move outside city limits,[15] to confine individuals with tuberculosis to sanitariums,[16] and to force a healthy woman who had traveled to an area previously infected with smallpox to quarantine for 14 days.[17]

But the state’s authority to enact emergency measures in response to a pandemic is not absolute.  Even Jacobson recognized that such measures must yield to the constitution when they are “beyond all question, a plain, palpable invasion” of constitutional rights “secured by the fundamental law” or in a manner “so arbitrary and oppressive . . . as to justify the interference of the courts to prevent wrong and oppression.”[18] 

So what emergency public health measures in response to COVID-19 are enforceable under the standard espoused in Jacobson?  The Supreme Court has not defined “the precise contours of this standard,”[19] and recently Justices Alito, Thomas, and Kavanaugh questioned whether Jacobson should even control in cases involving state responses to COVID-19.[20] So, current challenges to states’ COVID-19 responses naturally raise myriad unsettled issues.

4.   Recent Litigation Related to COVID-19 Public Health Measures

The balance between states government’s right to enact protective measures during a public health emergency and the restriction of personal liberties is a delicate one.  The economic hardship resulting from government imposed shutdowns resulted in discord among governments and their constituencies who feel their government have taken a paternalistic approach.  Many lawsuits in various jurisdictions have been filed challenging the restrictions.  Branches of government within states are looking to the courts for clarification, resolution, and even reversal of executive orders.

a.      The Supreme Court Weighs In

Noteworthy litigation reached the United States Supreme Court from California and Illinois.  In both cases, the Court denied challenges brought by churches to state laws restricting religious gatherings.  In the California case, the Supreme Court ruled 5-4 that the State’s restriction did not violated the First Amendment, stating “[w]e’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure. […] if a ‘[c]ourt does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.’”[21]  The Illinois case was brought under similar challenges, however the Illinois Department of Public Health changed its guidelines on maximum capacity and social distancing, allowing the church members to meet, so the case was never heard.

b.      Challenges to Governors’ Orders by State Legislatures and Citizens

Many authorities have turned to the courts to challenge governors’ unilateral actions.  In Michigan, Illinois and Wisconsin, suits have been brought against the governor.  These challenges claim the governor exceeded statutory or constitutional executive power.  The Michigan and Illinois cases are pending appeal, and the Wisconsin Supreme Court struck down the Governor’s order stating “in a case of a pandemic, which lasts month after month, the Governor cannot rely on emergency powers indefinitely.”[22]  In Kansas, Governor Kelly sued her state’s legislature when they purported to revoke her executive order.  The state’s Supreme Court sided with the Governor when it ruled that the legislature’s revocation was invalid.[23] 

Citizens are also bringing challenges to governors’ executive orders alleging violations of individual freedoms.  Cases assert violations to freedom of religion, others assert disparate treatment under the Fourteenth Amendment and violations of Substantive Due Process. 

In Oregon, individuals and churches sued Governor Brown asserting her executive order exceeded the duration allowed under the law cited in it.  The Circuit Court agreed with plaintiffs and issued a preliminary injunction.[24] 

Two cases challenged Kentucky Governor Beshear’s fourteen day quarantine requirement for out-of-state travels.  One was dismissed in District Court for lack of standing, and the other was successful on appeal to the Sixth District.[25]  The Court of Appeal granted church plaintiff’s injunction, which challenged Beshear’s executive orders prohibiting mass gatherings but granting exception to certain businesses and ordering nonessential businesses to close.  The Court relied on the unequal treatment of businesses and churches, stating, “[Kentucky] trusts its people to innovate around a crisis in their professional lives, surely it can trust the same people to do the same things in the exercise of their faith.”[26] 

The global health crisis created by the outbreak of COVID-19 has challenged American’s governmental institutions.  State executive branches and administrative agencies tasked with protecting public health and welfare responded by restricting human contact to contain community spread, while legislatures challenged those actions in response to a frustrated and economically strained constituency.  State and local courts have become a necessary forum for adjudicating these uncommon and novel issues.  By and large, the restrictions and protective measures taken by local governments are well within states’ rights.  The Courts have made it clear that the power is not limitless, and the all orders must be fairly administered.

[1]See e.g., Hunton Andrews Kurth, COVID-19 Complaint Tracker, available at https://www.huntonak.com/en/covid-19-tracker.html (last visited August 10, 2020).

[2] Murphy v. Lamont, No. 3:20-cv-0694, 2020 WL 4435167 (D. Conn. Aug. 3, 2020).

[3] See, e.g. Wilson v. New, 243 U.S. 332, 348 (1917) (“[A]n emergency may not call into life a power which has never lived,” but “emergency may afford a reason for the exertion of a living power already enjoyed.”).

[4] See 42 U.S.C. § 264.

[5] This is relatively consistent with the rarity that the federal government’s powers under the PSHA have been used.  Indeed, since the PSHA’s passage in 1944, federal action in response to outbreaks has been few and far between, and only two federal quarantines have been challenged in federal court, neither of which involved a challenge to the federal government’s authority to issue quarantine and isolation orders.  See United States ex rel. Sigel v. Shinnick, 219 F. Supp. 789, 790–91 (E.D.N.Y. 1963); Speaker v. U.S. Dep’t of Health & Human Sevs. Ctrs. for Disease Control & Prevension, 623 F.3d 1371, 1374 (11th Cir. 2010).   

[6] https://www.americanprogress.org/issues/healthcare/news/2020/08/06/488775/new-strategy-contain-coronavirus/ (last visited August 11, 2020).

[7] See https://www.washingtonpost.com/graphics/2020/national/states-reopening-coronavirus-map/ (last visited August 11, 2020) (No Restrictions: AK, WV; Minor Restrictions: AL, AZ, AR, FL, GA, ID, IN, IA, KS, KY, LA*, ME, MI*, MN, MS, MO, MT, NE*, NV, NH, ND, OH, OK, PR, RI, SC, SD, TX*, U.S. Virgin Islands, UT*, VT, VA, WI, WY; Moderate: CO, CT, DE, D.C., HA, IL*, MD*, MA, NJ, NM, NY*, NC, OR, PA, TN*, WA*; Major Restrictions: CA (*vary by region)).

[8] https://www.healthaffairs.org/doi/10.1377/hlthaff.2020.00818 (last visited on August 11, 2020).

[9] See https://nga2.maps.arcgis.com/apps/MapSeries/index.html?appid=830dd807f53f44988ec2e2238c6829a5

[10] U.S. Const. amend. X; see also Gibbons v. Ogden, 22 U.S. 1, 205 (1824) (Almost two centuries ago, the Supreme Court cited quarantine laws as an example of that which were clearly within the police powers of the states).

[11] Jacobson v. Massachusetts, 197 U.S. 11 (1905).  Even prior to Jacobson, the Supreme Court rejected Commerce Clause and due process challenges to a state law which barred all healthy noncontagious immigrants from entering areas in which there was disease.  See Compagnie Francaise de Navigation a Vapeur v. Louisiana State Bd. of Health, 186 U.S. 380, 391–93 (1902).

[12] Jacobson, 197 U.S. at 25, 27.

[13] CH Royal Oak, LLC v. Whitmer, No. 1:20-CV-570, 2020 WL 4033315, at *6 (W.D. Mich. July 16, 2020).

[14] Jacobson, 197 U.S. at 31.

[15] Kirk v. Wyman, 65 S.W. 387 (S.C. 1909).

[16] Moore v. Draper, 57 So. 2d 648 (Fla. 1952).

[17] United States ex rel. Siegel v. Shinnick, 219 F. Supp. 789 (S.D.N.Y 1963).

[18] Jacobson, 197 U.S. at 31, 38.

[19] See Prof’l Beauty Fed’n of Cal. v. Newsom, 2020 WL 3056126, at *7 (C.D. Cal. June 8, 2020) (but also recognizing that the Jacobson standard “plainly puts a thumb on the scale in favor of upholding state and local officials’ emergency public health responses.”).

[20] Calvary Chapel Dayton Valley v. Sisolak, No. 19A1070, -- U.S. --, (slip op. at 5) (July 24, 2020) (Alito, J, dissenting) (“. . . it is a mistake to take language in Jacobson as the last word on what the Constitution allows public officials to do during the COVID-19 pandemic.  Language in Jacobson must be read in context, and it is important to keep in mind that Jacobson primarily involved a substantive due process challenge to a local ordinance requiring residents to be vaccinated for small pox.  It is a considerable stretch to read the decision as establishing the test to be applied when statewide measures of indefinite duration are challenged under the First Amendment or other provisions not at issue in that case.”)

[21] See South Bay United Pentecostal Church et al. v. Gavin Newsom, 590 U.S.     (2020)

[22] https://www.freep.com/story/news/local/michigan/2020/06/04/michigan-supreme-court-whitmer-executive-powers/5273011002/ (last visited August 11, 2020); Michigan House of Representatives and Michigan Senate v. Whitmer; https://www.washingtonpost.com/politics/2020/05/13/wisconsin-supreme-court-strikes-down-governors-extension-stay-at-home-order/ Wisconsin Legislature v. Palm; Bailey v. Pritzker; https://www.kff.org/report-section/litigation-challenging-mandatory-stay-at-home-and-other-social-distancing-measures-table/ (last visited August 12, 2020).

[23] Kelly v. Legislative Coordinating Council https://www.republic-online.com/breaking_news/supreme-court-rules-in-gov-kellys-favor/article_102010aa-7c6b-11ea-b7f3-93af98ebe027.html (last visited August 12, 2020).

[24] Elkhorn Baptist Church et al v. Katherine Brown Governor of the State of Oregon; https://www.kff.org/report-section/litigation-challenging-mandatory-stay-at-home-and-other-social-distancing-measures-table/ (last visited August 12, 2020).

[25] https://www.kff.org/report-section/litigation-challenging-mandatory-stay-at-home-and-other-social-distancing-measures-table/ (last visited August 12, 2020).

[26] https://www.jdsupra.com/legalnews/covid-19-v-the-constitution-the-41447/ (last visited August 12, 2020).