Not surprisingly, local and state government orders aimed at mitigating the spread of novel coronavirus have already provoked a series of objections grounded in civil liberties. Just as quickly, courts entertaining challenges to these orders have stumbled into 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? In this essay, we argue that the mitigation strategies adopted in response to the coronavirus pandemic highlight three central problems with the “suspension” approach to judicial review of crisis powers. First, the suspension principle adopted by judges in some crisis powers cases is inextricably linked to the idea that the crisis is of finite — and limited — duration. In Smith v. Avino, for example, the underlying crisis (Hurricane Andrew) was over by the time the challenged county-wide curfew was put into effect; the restriction on civil liberties was meant as a stopgap measure while the government restored order. The Fifth Circuit’s decisions upholding Texas's coronavirus abortion ban likewise characterizes Texas’s order as effectuating a “temporary loss of constitutional rights.” But in a public health crisis like the coronavirus pandemic, when the restrictions are designed to slow the progress of the epidemic (and there might therefore be a relationship between the efficacy of the restrictions and the duration for which they will be needed), the stopgaps are potentially indefinite. Allowing for the suspension of more rigorous judicial review in such circumstances therefore risks allowing the exception to swallow the rule. Second, and relatedly, the suspension model presupposes that “ordinary” judicial review will judge government actions in a crisis too harshly — and, in the process, risks handicapping the government’s response. Here, too, the coronavirus pandemic provides a useful (if still-unfolding) counterexample: Even if curtailments of liberty — from business closures to shelter-in-place orders to quarantine orders for travelers — are subjected to the normal scrutiny arising from comparable government incursions into civil liberties, they are likely to be upheld. Every level of government has an unquestionably compelling interest in preventing the spread of a highly contagious (and often lethal) disease. To similar effect, if that compelling interest can be reasonably vindicated through less restrictive measures that are equally available to the government at the same time, it hardly undermines the government’s response to require it to pursue them. Finally, and perhaps most importantly, the suspension model wholly discounts the independent checking function of courts 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. By subjecting government incursions on civil liberties to meaningful judicial review, courts force the government to do its homework — to communicate not only the purposes of its actions, but also how the imposed restrictions actually relate to and further those purposes. In the process, a robust judicial role may be indispensable not only in minimizing the loss of our liberties, but also in facilitating the development of a sustainable, long-term response to this crisis — and a body of law to guide public health legal preparedness for the next one.
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Open Access
Sep 8, 2020
Gaurav M Doshi + 2
