The COVID-19 Cover-Up; How Federal Courts Are Changing Constitutional Law to Uphold Unconstitutional State Actions

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When a state deprives us of fundamental liberties, the judiciary is required to assess the government action using the strict scrutiny standard of review. Under this level of scrutiny, the state action must be narrowly tailored and serve a compelling state interest. An essential aspect of strict scrutiny is that the burden of proof is on the government. Amidst the COVID-19 pandemic, federal courts have largely failed to apply the strict scrutiny standard of review to state actions. Instead, courts have invented an entirely new standard of review specifically for state actions during a ‘public health crisis.’ Under this COVID-19 standard of review, courts may only overturn state actions that lack a real or substantial relation to public health or that amount to a plain, palpable invasion of rights. This judicial test shifts the burden of proof from the state to the individual. Unsurprisingly, the new COVID-19 standard of review vindicates state deprivations of liberty regardless of evidentiary based merit.This Article addresses the standard of judicial review federal courts are using to reject constitutional challenges to state actions in response to the coronavirus. This Article describes the fundamental liberties abridged by state lock-downs, and the judicial scrutiny historically applied to these types of infringements on liberty. This Article examines the 1905 Supreme Court case of Jacobson v. Commonwealth of Massachusetts, which courts utilize to support the new standard of judicial review developed during the COVID-19 pandemic. This Article reviews other legal precedents in the area of ‘quarantine law’ to expose how the COVID-19 standard of review is a radical divergence from traditional jurisprudence. Lastly, this Article compares federal court opinions using the new COVID-19 standard of review with the few court decisions still using strict scrutiny to review deprivations of liberty. This comparison demonstrates that once subjected to the appropriate level of judicial scrutiny and the burden of proof, state governments utterly fail to support the efficacy and necessity of their COVID-19 emergency measures.JUNE 2020 SUPPLEMENTAL UPDATE. Since the original publication of this Article on May 22, 2020, the U.S. Supreme Court has seemingly announced its intent to support the unbridled discretion of state governments and further cover-up unconstitutional state actions in response to COVID-19. On May 29, 2020, the Supreme Court rejected an application for injunctive relief in South Bay United Pentecostal Church v. Newsom. This case involved California’s 25% occupancy restriction on churches, which exempted secular businesses from the same restrictions. The church challenged the constitutionality of California’s restriction under the First Amendment’s Free Exercise Clause and sought to enjoin its application. The Court’s denial of injunctive relief was a 5-4 split decision. Chief Justice Roberts concurred with the progressive block of justices in favor of the denial and authored an opinion in support of the decision. According to Justice Roberts, “[t]he precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’ Jacobson v. Massachusetts, 197 U.S. 11, 38, 25 S.Ct. 358, 49 L.Ed. 643 (1905).” Like the other judicial pronouncements discussed in this Article, this statement by Justice Roberts continues the federal judiciary’s campaign to defile constitutional law and declare the supremacy of state police power over the individual freedoms endowed to us by the Constitution. Contrary to Justice Robert’s determination, constitutional precedent holds that when government restrictions on fundamental rights are subject to reasonable disagreement (i.e., the government is not able to demonstrate the necessity of its actions), the judiciary must err on the side of liberty. Whatever authority our Constitution provides government officials to guard and protect the safety and health of the people is unquestionably subservient to our fundamental rights. Our Constitution PRINCIPALLY entrusts government with the unrivaled mandate to preserve the sacred rights of humanity.This is the way liberty ends, not with a bang, but with the whimper of faithless justices who dare to tell us that we are too stupid to understand the plainly stated constraints our Constitution places on government.