Why Didn't COVID-19 Kill the Constitution? WE CAN THANK JUDGES WHO WERE PREPARED TO ENFORCE CONSTITUTIONAL LIMITS ON PUBLIC HEALTH POWERS.

• Author: Sullum, Jacob

THE DAY AFTER the nation's first COVID-19 lockdown took effect in the San Francisco Bay Area, New York Gov. Andrew Cuomo said he would never impose similar restrictions. Telling residents they may not leave their homes except for "essential" purposes "scares people," the Democratic governor told The New York Times on March 18, 2020, and "the fear, the panic, is a bigger problem than the virus." Cuomo unequivocally ruled out a stay-at-home order in New York. "That is not going to happen," he said.

Two days later, after California Gov. Gavin Newsom, a fellow Democrat, announced a statewide lockdown, Cuomo changed his mind. "We're all in quarantine now," he declared on March 20 while issuing an order "mandating that 100% of the workforce must stay home, excluding essential services."

Cuomo's sudden turnaround was not hard to understand given the looming threat from the COVID-19 pandemic, which would ultimately kill more than 50,000 New Yorkers. Once Newsom took the step that Cuomo had ruled out, Cuomo did not want to seem reckless by failing to follow suit. "This is the most drastic action we can take," he told reporters at a press conference in Albany. "This is not life as usual. Accept it. Realize it and deal with it."

Nearly every governor did eventually accept it. In the name of "flattening the curve" and reducing virus transmission, governors from both major parties imposed sweeping restrictions on social and economic activity. They told hundreds of millions of Americans when they could leave their homes, whether they could go to work or operate their businesses, and under what circumstances {if any) they could interact with people from other households. The "drastic action" that had been unthinkable in early March was taken for granted by April.

That remarkable transformation happened without much thought about the source of the vast powers claimed by politicians such as Cuomo and Newsom. Where did they get the legal authority to unilaterally close down the economy and dictate personal behavior on a massive scale?

While the U.S. Supreme Court had repeatedly held that states have broad public health powers, it also had said those powers were subject to constitutional constraints. State courts had long policed the boundary between executive and legislative powers, a line that many pandemic-inspired decrees seemed to cross. But neither federal nor state courts had ever addressed anything like the COVID-19 lockdowns, which were unprecedented in their scope and duration.

At the beginning of the pandemic, when the nature and extent of the coronavirus threat were unclear, courts generally were not inclined to clarify the nature and extent of constitutional limits on the government's response to it. Like everyone else, judges were afraid of the virus, and they were reluctant to interfere with the measures that elected officials deemed necessary to deal with it. But more than a year later, thanks to a series of state and federal rulings, we have a better idea of what the government can and can't do during a public health emergency.

Disputes involving the Second Amendment, access to abortion, and religious freedom have made it clear that an epidemic is not a license to ignore constitutional rights. Nor does it empower government officials to disregard the separation of powers or the distinction between federal and state authority. As U.S. District Judge William Stickman put it last September, when he condemned the "shockingly arbitrary" COVID-19 regulations imposed by Tom Wolf, Pennsylvania's Democratic governor, "the Constitution sets certain lines that may not be crossed, even in an emergency."

'SAVE THE NATION'

THE NATIONAL MOOD in the early days of the pandemic was not exactly conducive to a calm discussion of legal limits on public health measures. An essay published on the legal commentary site Verdict shortly before Newsom and Cuomo issued their lockdown orders captures the prevailing law-be-damned panic.

"We need to lock down the country--now," Cornell law professor Michael Dorf wrote. He did not explain the legal basis for a national lockdown, which does not seem to be authorized by any of the powers that the Constitution grants to the president or Congress. But to facilitate that lockdown and "save the nation" from COVID-19, Dorf recommended another constitutionally dubious step: "Congress can suspend the writ of habeas corpus, which ordinarily allows people to go to court to challenge any substantial restraint on liberty."

The Constitution says "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Although neither of those circumstances applied, Dorf suggested that the spread of the COVID-19 virus from other countries to the United States could be construed as an invasion. While "no one knows" whether the courts would accept that interpretation, since "Congress has only ever suspended habeas in wartime," he said, "there is reason to think that the courts would dismiss a habeas case following nearly any congressional suspension."

When supporters bothered to offer a legal rationale for lockdowns, they usually cited Jacobson v. Massachusetts, a 1905 case in which the Supreme Court upheld a state law that allowed towns to require vaccination during disease outbreaks. In 1902, responding to a smallpox epidemic that began in Boston, the Cambridge Board of Health ordered residents to be vaccinated if they had not been inoculated in the previous five years. Henning Jacobson, minister of the Swedish Evangelical Lutheran Church in Cambridge, refused, citing a bad smallpox vaccine reaction he had experienced as a child. He also refused to pay the resulting $5 fine, arguing that the Massachusetts law violated the 14th Amendment's guarantees of due process, equal protection, and "privileges or immunities."

Applying a deferential standard resembling what would later be known as the "rational basis" test, the Court rejected Jacob-son's claims. "There are manifold restraints to which every person is necessarily subject for the common good," Justice John Marshall Harlan said in the majority opinion. "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."

But the Court also said a state's public health authority has limits. "An acknowledged power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons," Harlan wrote. "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, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution."

The Massachusetts law passed muster, Harlan said, only because it did not "contravene the Constitution" or "infringe any...