As the COVID-19 pandemic continues to ravage the country and the world, the tragic loss of lives and staggering health effects and damage to our economy have been clear. But the legal questions regarding the scope of the state’s authority to invoke emergency rules and measures during the pandemic have been a topic of heated debate.
An August 6 Showcase CLE Program at the American Bar Association 2021 Hybrid Annual Meeting looked at the judiciary’s role in reviewing what power a state might have to design emergency
“Constitutional Long Haulers: The Undiagnosed Long-term Impact of Judicial Review on Emergency Public Health Orders” used a unique format to highlight the legal and structural issues revealed by litigation over emergency public health orders.
The program started with a mock appeal argument by two lawyers before a panel of three judges trying to determine if there was trial error in a case involving State X being allowed to close non-essential businesses and limit gatherings.
One of the judges was program moderator David K. Thomson, a New Mexico Supreme Court justice. He was joined on the judicial panel by Georgia Supreme Court Justice Shawn Ellen LaGrua and Wendy Mariner, professor of health law at Boston University School of Public Health.
Renee M. Landers, professor of law and faculty director of the health and biomedical law concentration at Suffolk University Law School in Boston, kicked off the program by representing the concerns of civil liberties advocates. She argued that closing nonessential businesses and placing restrictions on mass gatherings conflicted with First Amendment rights to worship and assembly.
Landers claimed that due process was violated because the speed of the order did not allow time for public notice or comment. She also questioned the ruling on the basis of the separation of powers, with an undue deference to the executive branch. She raised the point that scientific evidence that provided the basis of the public health orders was not sufficiently examined or vetted.
In questioning Landers, Thomson asked who should be responsible for protecting citizens if not the executive branch when exigent circumstances exist.
Landers contended that there needed to be good cause and prior notice, adding that the orders could be temporary and allow for comments after the fact that could address problems and lead to amending the original rules.
LaGrua wondered why the judicial branch should substitute its judgment for that of the executive branch. Landers stated that the executive branch should never be given a “blank check.”
Arguing for the state was Matt Garcia, chief of staff and former general counsel for the office of the governor of New Mexico. He pointed out the devastation caused to society by the virus and the executive branch’s authority to regulate issues that involve public health. Garcia noted that closings and restrictions at the time were the state’s “sole means of protecting residents,” and that speed in implementing the measures precluded public hearings.
Mariner asked Garcia just how long deference should be given to the executive branch concerning emergency public health orders. When it comes to public health and safety, “leeway should be given no matter how long the crisis lasts,” Garcia said.
The program format later switched to a discussion with all the panelists about the issues involved, including separation of powers, allocation of authority between state and local government, use of scientific evidence, administrative review, and the appropriate standard of review to apply in analyzing a government’s response to a declared crisis.
Landers questioned the duration and extent to which executive power could be used, even in an emergency, saying that “if not scrutinized, rights could be eclipsed.” There also was the concern that short-term rules could easily become permanent.
Garcia said that speed was crucial to the process, especially when lives were at stake and that executive authority sometimes needed to be invoked quickly.
Thomson conceded that the judiciary does not operate very quickly, but LaGrua added that rulings could be temporary and then changed after a time period for fact-finding and public comment.
Garcia wondered whether a more expedited path to the Supreme Court in such cases during emergency circumstances would accelerate the process.
Mariner also questioned if some rights, such as religious freedom, were beginning to be viewed as “more privileged rights.” All rights and freedoms need to be balanced against other rights, but she questioned whether there was a trend to prioritize some rights over others.
When Thomson asked the panel if, 10 years down the road, this time and these rulings will have changed the landscape of state authority versus personal freedom, Landers said that was “hard to answer.”
Thomson pointed out how older rulings such as the 1905 case of Jacobson v. Massachusetts, which upheld the authority of states to enforce compulsory vaccination laws, can be interpreted so differently depending on the court. Mariner questioned whether this time may be the start of weaponizing First Amendment rights to do away with emergency public health orders altogether.
The tension between individual liberties and the power of the state have been heightened since the pandemic. Moving forward, the issue of where the boundary lies between government action and personal freedom when public safety and the common good is involved requires close examination and better clarity.
“Constitutional Long Haulers: The Undiagnosed Long-term Impact of Judicial Review on Emergency Public Health Orders” was sponsored by the ABA Judicial Division.
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