Democratizing the Law of Social Distancing

Abstract

Public health emergency statutes should give executive-branch officials clear authority to respond swiftly in a crisis while setting forth principles to guide executive discretion. Statutes already provide specific authorizations and statutory guardrails for individually targeted measures like isolation and quarantine. New legislation is needed to provide similarly specific authorizations and guardrails for compulsory social distancing and face mask orders. Reforms should facilitate democratic accountability for executive-branch decisions in addition to protecting individual rights. This article offers five key principles to guide legislation. First, statutes should mandate transparency, which is critical to secure the public’s trust. To ensure compulsory orders are conditioned on a demonstrated threat of significant risk and a suitable fit between the means and clearly stated ends, mandated disclosures should include statements of the strategic purpose orders are intended to serve, the scientific understanding on which they are based, and the criteria for when they can be lifted. Second, statutes should provide officials with a graded range of alternatives to ensure a sustainable emergency response that can be tailored to evolving conditions and understanding. To facilitate a scaled response that balances the risk of contributing to community transmission against other public priorities, classifications of services, businesses, and activities as essential or high-priority should be developed in advance. Third, statutes should provide substantive standards to ensure orders are neutral laws of general applicability that do not discriminate on the basis of religion. Fourth, to enable widespread voluntary compliance and minimize unjust distribution of the benefits and burdens of public health intervention, statutes should mandate that restrictions must be accompanied by financial and other material supports, legal protections, and accommodations for safer alternatives to restricted activities to the greatest extent possible within available resources. Finally, statutes should authorize criminal enforcement against individuals who violate social distancing orders only if executive-branch officials establish that it is the least restrictive alternative available to achieve the government’s purpose. These principles should also guide executive officials as they exercise the discretion granted to them under existing statutes.This article proceeds in four parts. In Part I, I describe the evolution of public health emergency law through the turn of the twenty-first century, which determined the governmental powers available at the start of the coronavirus pandemic. In the Part II, I describe the community mitigation strategy implemented to slow the spread of the 2020 coronavirus pandemic in the United States after containment efforts failed. In Part III, I map the legal challenges to coronavirus emergency orders adjudicated in state and federal courts and describe their key themes. Finally, I propose statutory guardrails for state legislatures to guide the use of compulsory social distancing and PPE for the general public.