Coronavirus Update 9-16-2020: Federal court holds state indefinite Covid-closure orders are unconstitutional

In County of Butler v. Wolf, Judge William S. Stickman IV of the United States District Court for the Western District of Pennsylvania (a recent appointee of President Trump) held that state-imposed shutdown orders that closed businesses, required people to stay home, and placed limits on public gatherings—all aimed at stopping the spread of the COVID-19 pandemic—were "well-intentioned" but unconstitutional.

At issue was a series of business closure and stay-at-home orders issued by Governor Tom Wolf of Pennsylvania shortly after the start of the COVID-19 pandemic.

Judge Stickman concluded these orders were unconstitutionally overbroad.

The court concluded as follows:

• Limitations on "events and gatherings" of 25 persons for indoor gatherings and 250 persons for outdoor gatherings violate individuals' First Amendment right of assembly and their related right of free speech.
• Orders closing "non-life-sustaining" businesses and imposing a lockdown through stat-at-home orders violated individuals' liberties guaranteed by the Due Process Clause of the Fourteenth Amendment.

In sum, the court did not believe that the ongoing pandemic sufficiently justified an infringement on constitutional liberties in the name of protecting public health and safety:

The Court closes this Opinion as it began, by recognizing that Defendants' actions at issue here were undertaken with the good intention of addressing a public health emergency. But even in an emergency, the authority of government is not unfettered. The liberties protected by the Constitution are not fair-weather freedoms—in place when times are good but able to be cast aside in times of trouble. There is no question that this Country has faced, and will face, emergencies of every sort. But the solution to a national crisis can never be permitted to supersede the commitment to individual liberty that stands as the foundation of the American experiment. The Constitution cannot accept the concept of a "new normal" where the basic liberties of the people can be subordinated to open-ended emergency mitigation measures. Rather, the Constitution sets certain lines that may not be crossed, even in an emergency. Actions taken by Defendants crossed those lines. It is the duty of the Court to declare those actions unconstitutional.

Just as important as the court's overall holding is his dismissal of Jacobson v. Massachusetts—the century-old U.S. Supreme Court precedent that recognized the broad police power of the state to regulate to protect public health and safety—as old, stale, and no longer constitutionally relevant.

Jacobson was decided over a century ago. Since that time, there has been substantial development of federal constitutional law in the area of civil liberties. As a general matter, this development has seen a jurisprudential shift whereby federal courts have given greater deference to considerations of individual liberties, as weighed against the exercise of state police powers. That century of development has seen the creation of tiered levels of scrutiny for constitutional claims. They did not exist when Jacobson was decided. While Jacobson has been cited by some modem courts as ongoing support for a broad, hands-off deference to state authorities in matters of health and safety, other courts and commentators have questioned whether it remains instructive in light of the intervening jurisprudential developments.

County of Butler v. Wolf is narrow—it only applies to Pennsylvania law and then only in Western Pennsylvania. There is little doubt, however, that this case is headed for the Third Circuit Court of Appeals. This case, however, has the potential to have a broad national impact. This pandemic isn't going away anytime soon, it is likely that we may face more closure orders and other restrictions as we head into winter, and other courts could seize on the rationale of this case to limit the authority of other states to regulate to protect the health and safety of the public. For this reason, County of Butler v. Wolf could end up as one of the most significant federal court decisions of 2020, and warrants close watching.

* Photo by Anastasiia Chepinska on Unsplash