JACOBSON 2.0: POLICE POWER IN THE TIME OF COVID-19.

• Author: Steiner-Dillon, James R.

1. INTRODUCTION

   The COVID-19 pandemic created a multitude of global crises--public health, (2) economic, (3) and legal, (4) among others. In the United States, state and local governments have faced a threat to public health unparalleled in the past century, (5) and have adopted measures to mitigate the COVID-19 threat drawing upon aspects of the state police power that have remained largely dormant within living memory. (6) Beginning in March 2020, states undertook a series of initiatives intended, initially, to "flatten the curve" of the pandemic--that is, to slow the spread of the virus in order to avoid overwhelming local hospitals' capacity to treat patients. (7) State COVID-19 orders varied widely in the details, but often included the shutdown of non-essential businesses, the closing of universities, museums, and churches, the imposition of moratoria on elective or non-essential medical procedures, requiring residents to remain in their homes except for necessary activities, and implementing social distancing or face mask requirements in public places. (8) These measures represented a sharp break in the daily routines of most Americans, and a disruption to civic life unprecedented in scope and duration in peacetime. (9)

   It's therefore unsurprising that the states' COVID-19 orders quickly provoked a wave of constitutional challenges. (10) Americans suddenly precluded from working, shopping, worshiping, or even traveling with the freedom to which they had been accustomed asked the courts to enjoin enforcement of COVID-19 orders as exceeding the states' constitutional authority. (11) These cases asserted a variety of federal constitutional claims, pitting the states' police power to protect the public health and safety against individual liberties protected, as against the states, by the Fourteenth Amendment's Due Process and Equal Protection Clauses. (12) While cases challenging the scope of the public health police power have been routine fixtures in federal litigation over the past century, (13) the volume of litigation seeking to clarify the boundaries of states' public health police power in the context of constitutional challenges to COVID-19 orders appears to be unprecedented. (14)

   The explosion of litigation challenging COVID-19 orders exposed the antiquated constitutional foundations of states' police power in the area of public health, while at the same time presenting an overdue opportunity to update and clarify the constitutional norms by which the states' power to protect public health is balanced against individuals' constitutional liberties. The leading decision of the United States Supreme Court on this matter is Jacobson v. Massachusetts, a case addressing the scope of municipal authority to impose a vaccination requirement during a smallpox outbreak. (15) Decided in 1905, Jacobson affirmed the power of a local government acting pursuant to a statutory delegation of power to impose a vaccine requirement backed by a criminal fine for non-compliance. (16) The Court held that, whatever individual liberties the Fourteenth Amendment might protect, they are subordinate in times of a public health crisis to the state's interest in protecting the community:

   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. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. (17) While Jacobson recognized that courts exercising constitutional review of public health orders should invalidate an order that is "beyond all question, a plain, palpable invasion of rights secured by the fundamental law," (18) the constitutional limits of state power in the area of public health were left ambiguous. Jacobson's open-ended deference to state action left the public health police power open to egregious abuse in the ensuing decades. Perhaps most notoriously, most legal scholars and attorneys are familiar with Justice Holmes's dictum in Buck v. Bell, (19) upholding the states' power to impose eugenic sterilization on those deemed mentally unfit, that "[t]hree generations of imbeciles are enough." (20) Less widely quoted is the sentence immediately preceding that pronouncement: "[t]he principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes." (21) Jacobson was the only case that Justice Holmes cited for that principle. (22)

   The questions that Jacobson left open concerning the limits of state police power have grown more urgent in the 117 years since the case was decided, as the Court has developed a constitutional framework with more robust protections for individual rights. (23) In 1905, no provision of the Bill of Rights had yet been incorporated, via the Fourteenth Amendment's Due Process Clause, against the states. (24) The Supreme Court had not yet developed the tiers of constitutional scrutiny that now apply in many areas of constitutional analysis. (25) And the constitutional right to privacy underlying contemporary notions of individual bodily and reproductive autonomy was, at best, in a nascent and largely unrecognizable state. (26) Even constitutional norms against racial discrimination--which Justice Kavanaugh, in 2020, would call a "red line" that cannot be crossed even during a public health emergency (27)--were less rigorous at the time Jacobson was decided. (28)

   The changing constitutional landscape since Jacobson places courts adjudicating constitutional challenges to COVID-19 orders in a difficult position: how can Jacobson, which remains the leading Supreme Court case on the question of state police power in the public health context, be reconciled with a century of subsequent precedent, the language of which the Jacobson Court largely did not speak? Should the court ignore a century of constitutional precedent and hold that Jacobson alone, with its highly deferential approach and anachronistic disregard of federal constitutional limitations on states' interference with individual rights, decides the issue? Or should they ignore Jacobson, which by all appearances remains good law, and simply apply the traditional doctrinal tests with no regard to the unique demands of a public health emergency? Courts adjudicating constitutional challenges to COVID-19 orders have tried both approaches. (29) Most, however, have attempted to reconcile the precedents, finding a way to incorporate Jacobson's fundamental holding into an analysis that also applies the traditionally applicable tests and doctrines developed after Jacobson. (30) Yet these courts have struggled to find an approach that effectively synthesizes Jacobson's holding and reasoning with the multitude of constitutional doctrines developed after that case. (31)

   Underlying the courts' divergent treatment of Jacobson in constitutional challenges to COVID-19 orders is a fundamental constitutional question: to what extent should constitutional norms change during public health emergencies? Should state interventions that would, in normal times, unconstitutionally burden protected rights and liberties be permitted for the sake of preserving public health? Or should we be willing to pay a price, even in lives, for the preservation of rights and liberties that have, after all, been deemed to be "so rooted in the traditions and conscience of our people as to be ranked as fundamental" (32) or "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if they were sacrificed"? (33) Any doctrinal framework for analyzing questions of state police power during a public health crisis--even one that denies that circumstance any special constitutional status--necessarily takes a position on these questions. (34) The COVID-19 litigation provides an opportunity to consider these questions anew, in light of both the constitutional developments of the twentieth and early twenty-first centuries as well as the stark realities, forgotten over time, of life during a deadly pandemic.

   Several scholars have argued that courts should essentially ignore Jacobson in favor of subsequent doctrines, subjecting COVID-19 orders to "regular" constitutional review rather than the more deferential standard that Jacobson would require. (35) These scholars argue, for example, that "ordinary" constitutional review already leaves substantial room for states to act in furtherance of their "compelling" interest in mitigating the COVID-19 pandemic, (36) that the "suspension" model presumes a short-term crisis as opposed to the months- or years-long modifications of ordinary life that the COVID-19 pandemic will require, (37) and that active judicial review during times of crisis is necessary not only for the protection of individual liberties against pretextual or excessive state overreach, but also to preserve "the unique checking role" of judicial review in times of emergency. (38) They tend to present the choice between "ordinary" constitutional review and the "suspension" of civil liberties as dichotomous alternatives.

   This Article argues for a middle path. We contend that Jacobson is long overdue for a Casey-like (39) reaffirmation and clarification that would preserve Jacobson's essential holding that states enjoy greater regulatory latitude during a public health crisis, including latitude to enact temporary measures that might fail under "ordinary" constitutional review, while preserving meaningful judicial oversight as necessary to avoid pretextual or disproportionate state interference with individual rights and liberties. Drawing on the insights, and the shortcomings, of...