For obvious reasons, local and state orders designed to help “flatten the curve”1 of novel coronavirus infections (and conserve health care capacity to treat coronavirus disease2) 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
To take one example from many, consider the Fifth Circuit’s analysis in In re: Abbott4 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 In issuing a writ of mandamus to vacate a district court temporary restraining order (TRO) against the abortion ban,6 the court of appeals relied heavily on its belief that Casey’s7 familiar “undue burden” test8 did not govern its analysis.9 Rather, a far more deferential standard “for adjudging the validity of emergency measures,”10 purportedly derived from the Supreme Court’s 1905 decision in Jacobson v. Massachusetts,11 was appropriate.12
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
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 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 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
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 Invoking Smith v. Avino,18 a widely cited Eleventh Circuit decision regarding curfews imposed after Hurricane Andrew,19 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
In a coronavirus abortion ban decision of its own, Robinson v. Attorney General,21 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 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 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 The Eleventh Circuit’s approach, which the Sixth Circuit followed soon thereafter,25 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
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 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
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 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 Otherwise, we risk ending up with decisions like Korematsu v. United States31 — 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
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.