Extant threats of the COVID-19 pandemic extend well beyond the health of Americans. Unprecedented emergency legal preparedness and response efforts to quell the pandemic are testing core legal foundations globally. In the United States, federally-declared dual states of general emergency and public health emergency have altered national priorities. Never before have all 50 states and several territories formally declared simultaneous states of emergency, disaster, or public health emergency. Political leaders of tribes and localities, large and small, have issued their own declarations.
Collectively, these states of emergency transform the legal landscape, providing an array of emergency measures to stop the spread of COVID-19. Among the most sensational of these authorities are social distancing powers. Americans are experiencing, most for the first time, a dazzling range of distancing efforts – quarantine, isolation, closures, curfews, assembly limits, stay-home orders – all underwritten by emergency laws.
These same emergency laws allow federal and state officials to waive statutory or regulatory legal provisions inhibiting response efforts. Burdensome federal Medicare or Medicaid regulations are suspended. State-based medical licensure and scope of practice requirements are loosened. Other laws impacting insurance, housing, employment, taxation, and transportation are on hold temporarily in furtherance of social distancing mandates.
Widespread execution of emergency public health powers carries a heavy price. Weeks-long virtual shutdowns of businesses and consumers this Spring tanked global and U.S. economies. Upwards of 47 million Americans lost their jobs. Business bankruptcies escalated despite extensive federal bailouts. Social distancing measures contributed to widespread isolation, unrest, and litigation.
Americans have sued government at all levels to contest proclaimed infringements of rights to assemble, worship, protest, travel, and work, among other claims. As states like Arizona, Florida, Georgia, and Texas commence re-opening efforts, COVID-19 infections have only risen. Coextensively, a litany of constitutionally-grounded cases ensnarl litigants and judges trying to assess appropriate constitutional approaches during emergencies.
Most seem to understand the malleable nature of constitutional rights. As the U.S. Supreme Court observes in its seminal public health case, Jacobson v. Massachusetts (1905), individual rights and freedoms are not absolute. They must constantly be balanced with varied governmental interests.
Recalibrated weighing of communal and individual interests amid public health emergencies may marginalize some rights for limited durations. On May 29, 2020, the Court held that California’s COVID-19 limitations on church assemblies temporarily outweigh First Amendment religious freedoms. To rule otherwise, concludes Chief Justice Roberts, could entail unconstitutional “second-guessing” of executive decisions. Yet, constitutional rights remain firmly at play despite governments’ compelling interests in effectuating social distancing.
Some jurists, however, posit whether constitutional rights or structural norms are effectively waived or set aside in emergencies. They seem inclined to sweep aside constitutional interests altogether instead of re-balancing them. In 1969, two North Carolina residents were arrested after violating a local curfew in response to political unrest. They argued unsuccessfully, in United States v. Chalk, that the curfew overreached the mayor’s emergency powers. “Invocation of emergency powers,” stated the court, “necessarily restricts activities that would normally be constitutionally protected.”
In 1996, the 11th Circuit Court of Appeals upheld a Florida curfew imposed after Hurricane Andrew in Smith v. Avino. The court tossed aside constitutional challenges of the curfew as contravening rights to travel and free speech. During emergencies, it held, “fundamental rights . . . may be temporarily limited or suspended.”
Cases like Chalk and Avino are invoked to dispense current challenges to COVID-19 social distancing measures. In Binford v. Sununu, New Hampshire residents opposed Governor Sununu’s Executive Order capping gatherings at 50 people as contrary to First Amendment rights to assemble and religious freedom. Upholding the Governor’s order, the court concurred on March 25 that normal judicial scrutiny of constitutional infringements may be abandoned during the pandemic. Similar reasoning, in the case In re: Abbott, led the 5th Circuit Court of Appeals to allow Texas to temporarily ban non-elective surgical abortions on April 7. On May 22, Wisconsin’s Supreme Court ordered the continued suspension of most in-person court proceedings, completely setting aside right to trial claims.
These judicial interpretations are misguided. Constitutional principles cannot be jettisoned like legislative or regulatory provisions in emergencies. Rights stripped of their relevance cease to be rights at all. Suggesting otherwise during emergencies leads to two distinct possibilities: (1) governmental exercises of public health powers may run ramshod over individual freedoms; or, conversely, (2) individual rights may arguably thwart essential, efficacious public health measures. Neither outcome is acceptable. Achieving constitutional balancing during pandemics is precarious, yet possible. The key is finding a suitable balance and not dispensing with rights altogether.
James G. Hodge, Jr., J.D., LL.M., is the Peter Kiewit Foundation Professor of Law and Director, Center for Public Health Law and Policy, Sandra Day O’Connor College of Law, Arizona State University (ASU).
Hanna Reinke is a Legal Researcher with ASU’s Center for Public Health Law and Policy and J.D. Candidate, Sandra Day O’Connor College of Law, ASU.
