For obvious reasons, local and state orders designed to help “flatten the curve”1×1. The now-ubiquitous phrase “flatten the curve” refers to a mitigation strategy identified through historical analysis of the 1918 influenza pandemic and endorsed in U.S. pandemic influenza plans in 2007. See Ctrs. for Disease Control & Prevention, Interim Pre-pandemic Planning Guidance 9 (2007) (“Reshaping the demand for healthcare services by using [nonpharmaceutical interventions (NPIs), including social distancing] . . . means reducing the burdens on the medical and public health infrastructure by decreasing demand for medical services at the peak of the epidemic and throughout the epidemic wave; by spreading the aggregate demand over a longer time; and, to the extent possible, by reducing net demand through reduction in patient numbers and case severity. . . . Recent preliminary analyses of cities affected by the 1918 pandemic show a highly significant association between the early use of multiple NPIs and reductions in peak and overall death rates.”); see also Noreen Qualls et al., Ctrs. for Disease Control & Prevention, Morbidity and Mortality Weekly Report: Community Mitigation Guidelines to Prevent Pandemic Influenza — United States, 2017, at 18 (2017) (“Although there is limited empirical evidence supporting the effectiveness of implementing any individual measure alone (other than school closures and dismissals), the evidence for implementing multiple social-distancing measures in combination with other NPIs includes systematic literature reviews, historical analyses of the 1918 pandemic, and mathematical modeling studies.”). of novel coronavirus infections (and conserve health care capacity to treat coronavirus disease2×2. We use the general term “coronavirus” to refer to severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), which in turn causes coronavirus disease 2019 (COVID-19). See Naming the Coronavirus Disease (COVID-19) and the Virus that Causes It, World Health Org., https://www.who.int/emergencies/diseases/novel-coronavirus-2019/technical-guidance/naming-the-coronavirus-disease-(covid-2019)-and-the-virus-that-causes-it [https://perma.cc/8DNY-LQEQ]. ) have provoked a series of constitutional objections — and a growing number of lawsuits attempting to have those orders modified or overturned. Like the coronavirus crisis itself, much of that litigation remains ongoing as we write this Essay. But even in these early days, the emerging body of case law has rather elegantly teed up what we have previously described as “the central (and long-running) normative debate over emergency powers: Should constitutional constraints on government action be suspended in times of emergency (because emergencies are ‘extraconstitutional’), or do constitutional doctrines forged in calmer times adequately accommodate exigent circumstances?”3×3. Lindsay F. Wiley & Steve Vladeck, COVID-19 Reinforces the Argument for “Regular” Judicial Review — Not Suspension of Civil Liberties — In Times of Crisis, Harv. L. Rev. Blog (Apr. 9, 2020), https://blog.harvardlawreview.org/covid-19-reinforces-the-argument-for-regular-judicial-review-not-suspension-of-civil-liberties-in-times-of-crisis/ [https://perma.cc/E8FD-VXHL]. We could hardly do justice to the extensive literature informing this age-old scholarly debate. But for a helpful modern point/counterpoint, compare Oren Gross, Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?, 112 Yale L.J. 1011 (2003), which argues that public officials should be permitted to “act extralegally when they believe that such action is necessary for protecting the nation and the public in the face of calamity, provided that they openly and publicly acknowledge the nature of their actions,” id. at 1023, with David Cole, Judging the Next Emergency: Judicial Review and Individual Rights in Times of Crisis, 101 Mich. L. Rev. 2565 (2003), which explains that judicial review “offer[s] an opportunity to set the terms of the next crisis, even if [decisions] often come too late to be of much assistance in the immediate term,” id. at 2566. For a more sarcastic take, see Alice Ristroph, Professors Strangelove, 11 Green Bag 2d 245, 245–49 (2008) (reviewing Eric Posner & Adrian Vermeule, Terror in the Balance (2007)).
To take one example from many, consider the Fifth Circuit’s analysis in In re: Abbott4×4. 954 F.3d 772 (5th Cir. 2020). of a Texas executive order that, as construed by the state’s Attorney General, treated all abortions as elective medical procedures — effectively barring them for a significant period of time.5×5. See Press Release, Ken Paxton, Attorney Gen. of Tex., Health Care Professionals and Facilities, Including Abortion Providers, Must Immediately Stop All Medically Unnecessary Surgeries and Procedures to Preserve Resources to Fight COVID-19 Pandemic (Mar. 23, 2020), https://www.texasattorneygeneral.gov/news/releases/health-care-professionals-and-facilities-including-abortion-providers-must-immediately-stop-all [https://perma.cc/5HKF-8HWQ]; Raga Justin, No Abortions in Texas Unless the Mother’s Life Is in Danger, Texas Attorney General Says as Coronavirus Spreads, Tex. Trib. (Mar. 23, 2020, 3:00 PM), https://texastribune.org/2020/03/23/texas-stops-most-abortions-during-coronavirus-outbreak [https://perma.cc/SYC5-5TEM]. In issuing a writ of mandamus to vacate a district court temporary restraining order (TRO) against the abortion ban,6×6. Abbott, 954 F.3d at 777–78. the court of appeals relied heavily on its belief that Casey’s7×7. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992). familiar “undue burden” test8×8. Id. at 878 (plurality opinion). did not govern its analysis.9×9. Abbott, 954 F.3d at 785–86. Rather, a far more deferential standard “for adjudging the validity of emergency measures,”10×10. Id. at 787. purportedly derived from the Supreme Court’s 1905 decision in Jacobson v. Massachusetts,11×11. 197 U.S. 11 (1905). was appropriate.12×12. Abbott, 954 F.3d at 783.
According to that standard:
[W]hen faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some “real or substantial relation” to the public health crisis and are not “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”13×13. Id. at 784 (quoting Jacobson, 197 U.S. at 31).
The court did not limit its analysis to abortion: “Jacobson instructs that all constitutional rights may be reasonably restricted to combat a public health emergency.”14×14. Id. at 786. After the district court issued a narrower TRO on remand, the Fifth Circuit issued another writ of mandamus — reaffirming its earlier reliance upon Jacobson.15×15. In re: Abbott, 956 F.3d 696, 703 (5th Cir. 2020). And in a challenge to a similar coronavirus abortion ban in Arkansas, the Eighth Circuit followed Abbott, “find[ing] that the district court’s failure to apply the Jacobson framework produced a patently erroneous result.”16×16. In re: Rutledge, No. 20-1791, 2020 WL 1933122, at *5 (8th Cir. Apr. 22, 2020).
The reliance on the suspension principle has not been confined to coronavirus abortion bans. In one of the first cases arising from a coronavirus order, the governor of New Hampshire defended a statewide ban on large gatherings by arguing that “[a] court should only interfere” with “[a]n executive’s decision to exercise emergency powers in the face of a rapidly evolving public health crisis . . . when the executive’s actions were not taken in good faith or if there is no factual basis for the executive to believe that a restriction he imposed was necessary.”17×17. Objection to “Emergency Motion for Preliminary Injunction and Permanent Injunction” at 2, Binford v. Sununu, No. 217-2020-CV-00152 (N.H. Super. Ct. Mar. 25, 2020). Invoking Smith v. Avino,18×18. 91 F.3d 105 (11th Cir. 1996). a widely cited Eleventh Circuit decision regarding curfews imposed after Hurricane Andrew,19×19. Id. at 107; see also id. at 109 (“In an emergency situation, fundamental rights such as the right of travel and free speech may be temporarily limited or suspended.” (first citing Aptheker v. Sec’y of State, 378 U.S. 500 (1964); and then citing Korematsu v. United States, 323 U.S. 214 (1944))). the New Hampshire trial court accepted the good faith/some factual basis standard proffered by the defendant on the grounds that certain “fundamental rights . . . may be . . . suspended” for the duration of the emergency.20×20. Binford, slip op. at 13 (quoting Avino, 91 F.3d at 109).
In a coronavirus abortion ban decision of its own, Robinson v. Attorney General,21×21. 957 F.3d 1171 (11th Cir. 2020). the Eleventh Circuit carefully avoided a clear endorsement of suspension in the pandemic context. First, it did not dispute the district court’s determination that Avino’s “far more deferential review” was limited to “temporary, partial restrictions on certain fundamental rights . . . ‘when a curfew is imposed . . . in response to a natural disaster.’”22×22. Robinson v. Marshall, No. 2:19CV365, 2020 WL 1847128, at *12 (M.D. Ala. Apr. 12, 2020) (quoting Avino, 91 F.3d at 109 (emphasis added)); see also Robinson, 957 F.3d at 1179. Second, the Eleventh Circuit held that the district court had not erred in concluding that “the burdens imposed by the [state’s] medical restrictions . . . are undue under Casey, and . . . they impinge the right to an abortion in a ‘plain, palpable’ fashion under Jacobson.”23×23. Robinson, 957 F.3d at 1182 (citing Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905)). As a result, the court declined to stay a preliminary injunction requiring Alabama to allow health care providers to determine whether to delay a patient’s abortion.24×24. Id. at 1174. The Eleventh Circuit’s approach, which the Sixth Circuit followed soon thereafter,25×25. See Adams & Boyle, P.C. v. Slatery, 956 F.3d 913, 925–27 (6th Cir. 2020). suggests that the Supreme Court’s subsequent civil liberties jurisprudence can be reconciled with Jacobson’s broad language.
In this Essay, we argue that the suspension approach to judicial review is wrong — not just as applied to governmental actions taken in response to novel coronavirus, but in general. As we explain, the current crisis helps to underscore at least three independent objections to the “suspension” model some courts have derived from decisions like Jacobson and Avino. These critiques likewise apply to instances in which courts purport to adopt the appropriate standard of review but do not actually apply it with appropriate rigor.26×26. See, e.g., Korematsu v. United States, 323 U.S. 214, 216–18 (1944) (holding that internment of Japanese Americans passed “the most rigid scrutiny,” id. at 216, because of the compelling interests presented by national security concerns). Korematsu has been roundly rejected as part of the constitutional anticanon. Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379, 380, 387–90 (2011). In the absence of such a clear repudiation, soft applications of constitutional standards of review in times of crisis may create dangerous precedent for future applications of those standards once the crisis has passed. Justice Jackson articulated this concern in his Korematsu dissent: “[O]nce a judicial opinion . . . rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination.” 323 U.S. at 246 (Jackson, J., dissenting).
First, the suspension principle is inextricably linked with the idea that a crisis is of finite — and brief — duration. To that end, the principle is ill-suited for long-term and open-ended emergencies like the one in which we currently find ourselves.
Second, and relatedly, the suspension model is based upon the oft-unsubstantiated assertion that “ordinary” judicial review will be too harsh on government actions in a crisis — and could therefore undermine the efficacy of the government’s response. In contrast, as some of the coronavirus cases have already demonstrated, most of these measures would have met with the same fate under “ordinary” scrutiny, too.27×27. Cf., e.g., Legacy Church, Inc. v. Kunkel, No. CIV 20-0327, 2020 WL 1905586, at *36 n.12 (D.N.M. Apr. 17, 2020) (rejecting First Amendment challenges by a church to an order prohibiting gatherings without social distancing on the alternative ground that the order survives strict scrutiny). The principles of proportionality and balancing driving most modern constitutional standards permit greater incursions into civil liberties in times of greater communal need. That is the essence of the “liberty regulated by law” described by the Court in Jacobson.28×28. Jacobson, 197 U.S. at 27 (quoting Crowley v. Christensen, 137 U.S. 86, 90 (1890)).
Finally, the most critical failure of the suspension model is that it does not account for the importance of an independent judiciary in a crisis — “as perhaps the only institution that is in any structural position to push back against potential overreaching by the local, state, or federal political branches.”29×29. Wiley & Vladeck, supra note 3. Indeed, as Professor Ilya Somin has put it, “imposing normal judicial review on emergency measures can help reduce the risk that the emergency will be used as a pretext to undermine constitutional rights and weaken constraints on government power even in ways that are not really necessary to address the crisis.”30×30. Ilya Somin, The Case for “Regular” Judicial Review of Coronavirus Emergency Policies, Volokh Conspiracy (Apr. 15, 2020, 4:16 PM), https://reason.com/2020/04/15/the-case-for-normal-judicial-review-of-coronavirus-emergency-policies [https://perma.cc/W82D-NKRN]. Otherwise, we risk ending up with decisions like Korematsu v. United States31×31. 323 U.S. 214. — in which courts sustain gross violations of civil rights because they are either unwilling or unable to meaningfully look behind the government’s purported claims of exigency.32×32. See generally Peter Irons, Justice at War (1993) (documenting the government’s numerous misrepresentations to the federal courts in defending World War II–era internment camps).
In the process, we hope that our case for “ordinary” judicial review of civil liberties claims during public health emergencies will help to inform not only future academic debates over the role of courts during all manner of crises, but also ongoing litigation — and judicial decisions — arising out of governmental responses to novel coronavirus.
* Professor of Law and Director, Health Law and Policy Program, American University Washington College of Law.
** A. Dalton Cross Professor of Law, University of Texas School of Law. Our thanks to Nathan Chapman, Wendy Parmet, Ilya Somin, and Eugene Volokh for helpful discussions, and to Rachael Jensen, Sandhya Ramaswamy, and Elizabeth Raterman for timely and superlative research assistance.