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Excerpted From: Linda A. Sharp, COVID-19 Related Litigation: Constitutionality of Stay-at-Home, Shelter-in-Place, and Lockdown Orders, 55 ALR Federal 3d Art. 3 (Originally published in 2020; updated weekly) (9 Footnotes/extensive citations) (Full Document: Check Your Law Library)




As of August 20, 2020, there were 22,497,390 confirmed cases of coronavirus globally and deaths globally were reported at 789,455. In the United States on that same date, there were 5,549,826 confirmed cases of coronavirus and 173,626 deaths, according to the COVID-19 Dashboard maintained at Johns Hopkins University.

The World Health Organization officially declared severe acute respiratory syndrome coronavirus 2, otherwise known as COVID-19, as a pandemic on March 11, 2020, as it cited its thirteen-fold increase in cases and its spread to 114 countries. As the coronavirus began to make a considerable impact in the United States in early March, 2020, federal, state, county, and local governments began to take action to try to mitigate the spread of the virus and protect the health of citizens. These actions took a variety of forms and were often used together to try and slow the spread of the virus. For example, on March 11, 2020, President Trump exercised his executive authority as he announced restrictions on some forms of international travel from COVID-19 outbreak clusters in European Union countries. Previously, President Trump had restricted travel from China and Iran.

Most of the restrictions, however, that are addressed in this article stemmed from actions taken by state, county, and local governments. Most authority for public health responses, including quarantine and isolation powers, lies with state governments whose constitutions guarantee police powers. State powers and liberties recognized by the U.S. Constitution were incorporated, or recognized by the Supreme Court as applying to the internal affairs of the states, after the ratification of the Tenth Amendment.

There were a variety of responses made by the states including Executive Orders which contained travel restrictions on those entering and leaving the state, social distancing orders and guidelines, cancelling events with attendance over a certain capacity, and stay-at-home orders. The stay-at-home orders generally mandated that residents stay at home except for essential activities that were usually limited to basic shopping needs, outdoor exercise, medical needs and work for those employed in essential industries. Under stay-at-home orders, nonessential businesses were required to close. In some cases, local law enforcement and criminal misdemeanor charges could be made against those who violated the Executive Order. In some cases, county governments or local governments passed similar restrictions unique to their circumstances.

In the age of pandemic, the above restrictions on individual liberty have been challenged as violating aspects of freedoms guaranteed under the Constitution. How does a federal court determine to what extent a government may provide for the common good and safety of its citizens by restricting some liberties while preserving the fundamental constitutional principles of free exercise of religion, free speech, right of assembly, liberty, justice, due process, equal protection, and the right to travel? This balance lies at the core of the cases presented in this article.

Under ordinary circumstances, governmental restriction of liberties deemed fundamental under the Constitution must pass the test of strict scrutiny which necessitates that the rules or regulations must: (1) be necessary to fulfill a compelling state interest; (2) be narrowly tailored to fulfill that interest; and (3) utilize the least restrictive means to achieve the purpose of the law. This standard could apply to the COVID-related restrictions mentioned above as plaintiffs made challenges related to a wide spectrum of constitutional rights. If this standard were applied to the COVID-related restrictions, it would place a substantial burden on the governmental body to demonstrate that their policies were not overly restrictive since research on the coronavirus is ongoing and often in flux.

However, most of the decisions analyzed in this article illustrate that, when the courts were confronted with determining this balance between governmental restrictions instituted because of the pandemic and individual liberties, they adopted a deferential approach to the governmental restrictions as illustrated in the Supreme Court precedent of Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11358, 49 L. Ed. 643 (1905). In that case, there was a challenge to a state statute that mandated vaccinations for smallpox. The Supreme Court opined in Jacobson that "the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. 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." In Jacobson the state legislature had required smallpox vaccinations upon the theory that vaccination was recognized as an effective, if not the best-known way, in which to meet and suppress the evils of a smallpox epidemic that imperiled many people. The courts, therefore, according to Jacobson, should give deference to such a decision and only review legislative action in respect of a matter affecting the general welfare, "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, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law."

In many of the cases in this article, the courts adopted the deferential view of Jacobson and upheld the governmental restrictions. In some cases, the courts also referred to the recent case of South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020), which reinforced the Jacobson deferential view toward the power of state and local governments to institute COVID-19 restrictions. In South Bay, a memorandum decision by the Supreme Court, a number of courts cited language from Chief Justice Roberts' concurrence as further evidence that the Jacobsonprecedent was applicable during the current pandemic. In South Bay, a church had challenged an Executive Order that placed temporary numerical restrictions on public gatherings to address the extraordinary health emergency of the COVID-19 pandemic. The state guidelines had limited attendance at places of worship to 25% of building capacity or a maximum of 100 attendees. The Ninth Circuit had denied the plaintiff church's request for a preliminary injunction and the Supreme Court affirmed this denial.

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