Revisiting Jacobson v. Massachusetts: the Covid Cases

• Publication year: 2022

54 Creighton L. Rev. 559. REVISITING JACOBSON V. MASSACHUSETTS: THE COVID CASES

REVISITING JACOBSON V. MASSACHUSETTS: THE COVID CASES

ROBERT J. TOTH, JR., '22

ABSTRACT

How should the political branches of state and local governments cooperate with one another to promulgate emergency public health legislation? And how much deference should the judiciary allocate state executives and legislatures when reviewing such legislation?

This Note proposes a local application of the War Powers Resolution's "sliding scale of deference" in an effort to strike a constitutional balance between state executives and state legislatures. A local application of this fluid system of checks and balances would protect against unnecessarily burdening emergency executive orders by allowing state legislatures to recalibrate hurried emergency orders. Subsequently, this Note proposes replacing the Jacobson standard with heightened rational basis review when scrutinizing emergency executive orders. This process extends an additional layer of security to public health and fundamental rights in light of a declared emergency.

In sum, granting state legislatures more deference in redressing emergency public health orders and mandating the judiciary scrutinize such orders under heightened rational basis review offers better protection to public health and fundamental rights during declared emergencies.

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 560

II. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564

A. AN OVERVIEW OF STATE EXECUTIVE EMERGENCY POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564

B. JACOBSON V. MASSACHUSETTS: THE CONCEPTION OF VACANT JUDICIAL REVIEW IN SCRUTINIZING EMERGENCY PUBLIC HEALTH ORDERS . . . . . . . . . . . . . 567

C. THE RECENT APPLICATION OF THE JACOBSON STANDARD IN SCRUTINIZING EMERGENCY EXECUTIVE PUBLIC HEALTH ORDERS DURING THE COVID-19 PANDEMIC . . . . . . . . . . . . . . . . . . . . . . . . 569

D. THE WAR POWERS RESOLUTION OF 1973: ITS HISTORY, INTENDED PURPOSE, AND THE INTRODUCTION OF THE "SLIDING SCALE OF DEFERENCE" IN CALIBRATING EXECUTIVE DECISIONS DURING A STATE OF EMERGENCY . . . . . . . 572

III. ANALYSIS ......................................... 577

A. PROTECTING FUNDAMENTAL RIGHTS AND PREVENTING DISCRIMINATION IS IMPERATIVE, EVEN DURING A PANDEMIC ....................... 577

B. STATE LEGISLATURES ARE BETTER POSITIONED TO INITIALLY REVIEW COVID-19 EXECUTIVE ORDERS FOR CONSTITUTIONAL VIOLATIONS; HOWEVER, THE JUDICIARY SHOULD BE AUTHORIZED TO REVIEW THE STATE LEGISLATURE'S FINDINGS . . . . . . . . . . . . . . . . . . . . . . . . . 580

C. THE WAR POWERS RESOLUTION STRIKES A JUST BALANCE OF POWER BETWEEN STATE EXECUTIVES AND STATE LEGISLATURES . . . . . . . . . . . . 593

D. HEIGHTENED RATIONAL BASIS REVIEW SHOULD REPLACE THE INEFFICIENT JACOBSON STANDARD . . . 601

IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 603

I. INTRODUCTION

Recent criticisms of COVID-19 executive orders that have temporarily limited-and in some cases continue to limit-constitutionally protected rights can be categorized into two factions: (1) the varying amount of power state executives and legislatures have in promulgating, overseeing, and checking emergency public health orders; and (2) the varying tiers of scrutiny the judiciary has applied to analyze emergency public health orders. ^[1]

A state's police power is available to state and local governments during emergency situations when states must take expeditious action to protect the public. ^[2] The United States Supreme Court has vaguely defined the police power as the sovereign right of the government to protect the general welfare, comfort, morals, health, and lives of the people. ^[3] The Supreme Court has refrained from directly defining or limiting the police power because such power must be fluid in its application to include an assortment of triggering causes. ^[4] One of the drawbacks of this broad power is that its use may unnecessarily cause restrictions on fundamentally protected rights. ^[5]

A state's emergency power falls within the scope of its police powers and is used when "the very functioning of government is threatened." ^[6] Generally, states have granted their executives broad emergency powers to sufficiently protect the health and safety of the state's population and adequately defend against various threats. ^[7] State legislatures have created emergency power laws that grant their executives the authority to suspend, alter, or create new laws to better manage emergencies. ^[8] However, these emergency actions may negatively impact fundamental rights, which may never fully recover. ^[9] Additionally, state executives could use these emergency powers as a stratagem to purposely discriminate against certain suspect classes. ^[10]

Recently, individuals have challenged the constitutionality of several emergency executive public health orders in response to the COVID-19 pandemic, claiming such orders infringe on constitutionally protected rights. ^[11] To make matters worse, the judiciary has at times utilized the standard set forth in Jacobson v. Commonwealth of Massachusetts ^[12] to scrutinize such emergency orders, which hardly authorizes judicial review. ^[13] As a result, the judiciary has struggled with utilizing a uniform application of judicial review evidenced by some courts upholding the Jacobson standard, while others have abandoned the standard for the traditional tiers of scrutiny. ^[14]

Accordingly, the power to keep state executives in check during emergencies should belong to the state legislature, as opposed to the judicial system, because state legislatures determine the rectitude of state executives when they trade certain constitutional liberties for public health and safety. ^[15] Additionally, state legislatures are critical in maintaining checks and balances in light of an emergency. ^[16] Without state legislatures policing their executives during an emergency, the opportunity presents itself for these executives to use their emergency powers as a vehicle to unnecessarily limit individual liberties or obtain greater power for an extensive period of time. ^[17]

This Note argues the importance of protecting fundamental rights and preventing discrimination during a declared emergency. ^[18] Section II of this Note provides a brief overview of four essential areas regarding this topic: (1) state executive emergency powers, (2) the Jacobson standard, (3) the recent application of the Jacobson standard in scrutinizing COVID-19 executive orders, and (4) the history, intended purpose, and intricacies of the War Powers Resolution. ^[19] Section III of this Note proposes a local application of the War Powers Resolution in an effort to strike a balance between state executives and state legislatures to protect against unnecessarily burdening emergency executive public health orders. ^[20] Subsequently, this Note proposes replacing the Jacobson standard with heightened rational basis review when scrutinizing emergency executive public health orders to extend an additional layer of security to fundamental rights in light of a declared emergency. ^[21] In sum, granting state legislatures more deference in policing emergency public health orders and subsequently mandating the judiciary scrutinize such orders under heightened rational basis review offers better protection to fundamental rights during declared emergencies. ^[22]

II. BACKGROUND

A. AN OVERVIEW OF STATE EXECUTIVE EMERGENCY POWERS

A state executive's duty to protect the public health and safety of a state's population is critical. ^[23] State constitutions include provisions that grant their respective state executives the title of commander-in-chief of the state's military forces, which affords these executives the power to maintain peace and suppress insurrection. ^[24] These provisions create the foundation of a state executive's emergency powers. ^[25] Generally, such authorities grant these executives broad discretion during a state of emergency to sufficiently protect state populations against real or imminent danger. ^[26] Further, these fairly broad powers grant state executives sweeping emergency lawmaking authority to sufficiently combat emergencies once a threat arises. ^[27] However, the scope of such emergency powers granted to state executives under their respective constitutions is unclear. ^[28]

Strict compliance with existing laws during an emergency can hinder, delay, or completely prevent state executives from mitigating emergencies. ^[29] Therefore, although laws become incredibly adaptable during declared emergencies, they nevertheless remain enforceable. ^[30] State legislatures have created emergency power laws that grant state executives the authority to suspend, alter, or implement new laws to better manage emergency situations. ^[31] These laws outline, describe, and determine the powers of state executives during an emergency. ^[32] Emergency declarations implemented by state executives describe the threat, establish what powers the executive intends exercise, and explain how the emergency powers will be used. ^[33] These declarations are often made by a governor issuing either an executive order or a proclamation. ^[34] During a declared emergency, executive orders...