A Historical Review of the State Police Powers and Their Relevance to the Covid-19 Pandemic of 2020

A Historical Review of the State Police Powers and

Their Relevance to the COVID-19 Pandemic of 2020

Edward P. Richards*

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

I. PLAGUES IN THE PAST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

II. EPIDEMIC DISEASE IN THE AMERICAN COLONIES . . . . . . . . . . . . . . . . . . . 86

III. PUBLIC HEALTH LAW AT THE TIME OF THE DRAFTING OF THE

CONSTITUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

IV. THE POST-CONSTITUTION PUBLIC HEALTH CASES. . . . . . . . . . . . . . . . . . 89

V. GIBBONS V. OGDEN: DO POLICE POWERS SURVIVE THE COMMERCE

CLAUSE?........................................... 90

VI. THE QUARANTINE CASES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

VII. THE VACCINE CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

VIII. PERSONAL PUBLIC HEALTH RESTRICTIONS . . . . . . . . . . . . . . . . . . . . . . . . 101

IX. PUBLIC NUISANCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

INTRODUCTION

At the time this article was written, in June 2020, the United States was f‌ive

months into the 2020 COVID-19 pandemic. The United States Supreme Court, in

a divided decision,

1

has turned away a challenge to state authority to impose gen-

eral public health restrictions that did not exempt religious institutions. While

most state and federal courts have also rejected challenges to public health orders,

an unprecedented number of courts have sided with the challengers and substi-

tuted the courts’ judgment on public health safety measures for that of the state or

local public authorities. At this point in time, support for public health restrictions

to slow the spread of the virus tends to follow the existing ideological divide in

the country, ref‌lecting either the President’s skepticism of science and expert

opinion and downplaying the risk of the pandemic, or accepting the need for dra-

matic shared sacrif‌ice in the face of grave danger.

This article is a historical look at the judicial review of public health orders and

statutes. Courts have almost always deferred to the judgment of public health

authorities or legislatures in public health cases. In only two cases has the

Supreme Court found such actions unconstitutional.

2

In both, the Court found

* Edward P. Richards is the Director of the LSU Law Center Climate Change Law and Policy

Project, Clarence W. Edwards Professor of Law, and holder of the Edward J. Womac, Jr. Endowed

Professorship in Energy Law at the Louisiana State University Law Center. © 2020, Edward P.

Richards.

1. South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (mem.).

2. Yick Wo v. Hopkins, 118 U.S. 356 (1886); Ferguson v. City of Charleston, 532 U.S. 67 (2001).

83

that the proffered public health justif‌ication was pretextual, with a signif‌icant

racial/ethnic bias.

But while the judicial divide over the public health response to COVID-19 is

unprecedented, the public controversy is not. Public health actions have always

been controversial in the United States. There have always been vaccine resisters.

Businesses resist anything that interferes with their operations. Individuals resist

restrictions on personal behavior, whether that was wearing masks in 1918-1919

or being isolated for tuberculosis. Public off‌icials also have sometimes failed to

act because of public opposition. Public resistance to disease control measures

during the 1918-1919 f‌lu pandemic, for example, led to a second wave of cases

and a dramatic increase in deaths.

3

And political opposition to public health

actions greatly exacerbated the impact of the HIV/AIDS epidemic in the United

States.

I. PLAGUES IN THE PAST

Infectious disease has shaped society from the earliest days. Infection made

even minor injuries potentially fatal. When society shifted from small hunter

gatherer groups to permanent farming communities, the increased population

density provided a niche for diseases such as smallpox, which only spread among

humans. Unsanitary food could sicken or kill individuals or an entire community

if shared at a feast. Even if the fatality rate for a disease was not high in isolated

cases, an epidemic could decimate a community, because simultaneous illness

destroyed societal support systems: there would be no one who could prepare

food or go for water. The classic book, Rats, Lice and History, provides a graphic

view of this world:

In earlier ages, pestilences were mysterious visitations, expressions of the

wrath of higher powers which came out of a dark nowhere, pitiless, dreadful,

and inescapable. In their terror and ignorance, men did the very things which

increased death rates and aggravated calamity. . . . Panic bred social and moral

disorganization; farms were abandoned, and there was shortage of food; fam-

ine led to . . . civil war, and, in some instances, to fanatical religious move-

ments which contributed to profound spiritual and political transformations.

4

As an invisible threat that could destroy a tribe or a civilization, disease was a

natural focus of religion. Religious taboos provided the f‌irst public health codes.

In the Judeo-Christian tradition, public health law starts in Genesis: “But of the

tree of the knowledge of good and evil, thou shalt not eat of it: for in the day that

thou eatest thereof thou shalt surely die.”

5

Leviticus provides is a more detailed

3. Brian Dolan, Unmasking History: Who Was Behind the Anti-Mask League Protests During the

1918 Inf‌luenza Epidemic in San Francisco, PERSPECTIVES IN MED. HUMANITIES (May 19, 2020).

4. HANS ZINSSER, RATS, LICE AND HISTORY 129 (Classics of Med. Libr. 1997) (1935).

5. Genesis 2:17.

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