Deep Dive Episode 148 – Civil Liberties and COVID-19 Shelter in Place Orders

On November 19, 2020, the Federalist Society’s Regulatory Transparency Project and the Memphis Lawyers Chapter co-hosted an online event on “Civil Liberties and COVID-19 Shelter in Place Orders.”

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Transcript

Although this transcript is largely accurate, in some cases it could be incomplete or inaccurate due to inaudible passages or transcription errors.

[Music and narration]

 

Introduction:  Welcome to the Regulatory Transparency Project’s Fourth Branch podcast series. All expressions of opinion are those of the speaker. 

 

Host:  On November 19, 2020, the Memphis Lawyers Chapter of The Federalist Society hosted Professor Julia Mahoney for a discussion on “Civil Liberties and COVID-19 Shelter in Place Orders.” The following is a recording of that event.

 

Gregory Grisham:  Welcome, everybody. This is Greg Grisham. I’m President of the Memphis Lawyers Chapter of The Federalist Society. I welcome everybody to our CLE program today. We have a great program lined up for you. It’s a good way to — a good kickoff program for Thanksgiving. 

 

We have Professor Julia Mahoney, who is the John S. Battle Professor of Law at the University of Virginia. She teaches courses in constitutional law and has written on the subject and has spoken on the subject. And she’s an expert on the conflict between COVID-19 and governmental actions. 

 

She’s going to talk about how our civil liberties are implicated in the limitations on government power and some of the things going on which we’re all concerned about. I know that I certainly would hate to be arrested as I was eating Thanksgiving dinner with my family. That would be unfortunate. So hopefully, that’s not going to happen. I don’t think it will happen in Tennessee, at least. But anyway, we really appreciate Professor Mahoney joining us today. 

 

So if you would, Professor Mahoney’s going to speak for about 45 minutes or so, and then we’ll entertain questions. So if you have questions, put them in the Q&A box and we’ll get those answered for you. So anyway, without further ado, I want to turn the program over to Professor Mahoney, and we welcome you to — you’re not physically in Memphis, but we’ll welcome you to Memphis anyway. So go ahead and take over. 

 

Prof. Julia Mahoney: Thank you so much. I’m so glad to be with you all. I wish, of course, I were there in person and not over Zoom, but maybe one day I will get to come to Memphis and to meet many of you in person. 

 

I will speak for roughly 45 minutes. I do want to leave time for questions. I find in talking about this subject, I’m getting lots and lots and lots of great questions, so I definitely want to hear from all of you about your experience. 

 

So I will break down the presentation part of the session as follows. First, I will discuss the world before COVID-19. What was public health policy in what are now called the before times? What were public health strategies for controlling infectious disease? Spoiler alert: we didn’t have much in the way of travel bans, we certainly hadn’t contemplated lockdowns, and no one, to my knowledge, had ever suggested that we have the kind of school closures that we have seen in the United States. I’ll also discuss some of the understanding of what the legal framework was in the times before COVID-19 about what the extent of the police power for state and local governments in particular was.

 

Second, we’ll look at state, local, and federal government responses to COVID-19. Why lockdowns? Why school closures? Why so little targeted protection? It was clear from fairly early on in this epidemic that probably the most vulnerable by far people were in care facilities or had some kind of autoimmune or other serious health issue. So why was that knowledge — even though it was preliminary knowledge, it was pretty strong knowledge — why was that not folded into various policy measures? And then we’ll turn and look at legal challenges to the government restrictions, both individual rights and structural and administrative.

 

Then we’ll look at COVID-19 restrictions on civil liberties in the broader context of economic liberty and property rights. In my judgement, there was already a lot of movement before the COVID-19 government crackdowns, a lot of movement in terms of economic liberties and property rights. And one question that I’m thinking a lot about is whether the government responses to COVID-19 and the court challenges that have followed those government responses, has that moved the needle back in terms of a greater understanding of economic liberty and property rights, or have the kind of restrictions that we’ve seen on the part of governments, has that pushed things even more? Has that, in effect, stimulated even more support for protection, particularly by courts, of economic liberties and property rights?

 

And then, finally, I will wrap up with what next? Will COVID-19 restrictions provide a template for government initiatives going forward? Are we going to live in a world, as many have suggested, where anytime there is an even plausible suggestion that severe restrictions are necessary or even helpful for dealing with serious problems like pandemics or climate change, that it’s going to be widely accepted, that the government will be able to impose the sorts of restrictions that we’ve been seeing in the last few months? 

 

Or is that being a bit paranoid, as others have suggested, including Eugene Volokh at the University of California at Los Angeles Law School, with whom I was on a panel on COVID-19. His view is that these restrictions are politically self-limiting, and they are highly unlikely to pave the way for government action in non-pandemic times. 

 

All right. First, the world before COVID-19, the so-called before times. What did it look like? Well, let’s start with public health. The public health policy world of before COVID-19 was very much one that deemphasized infectious disease. To most of the public health experts that I know, infectious disease was, if not a battle that had been won, it was not the central focus of the public health establishment. Smallpox, polio, even chickenpox, measles, those had been vanquished through better public hygiene and, of course, through vaccinations. 

 

Sure, the flu remained a perennial problem. It comes back year after year after year. And the flu certainly has been deadly. And public health experts certainly would have admitted in the so-called before times to COVID-19 that we have to pay attention to the flu, that we had certainly seen, of course, the catastrophic epidemic of 1918 to 1920 which killed about 675,000 Americans. We’d also seen terrible flu outbreaks in 1957 to 1958, and then again in about a decade later. 

 

It’s very difficult to calculate flu deaths, as it has turned out to be, as you all know, to calculate COVID-19 deaths. But reasonable estimates of the death toll from the 1957 flu outbreaks were in the neighborhood of 100,000 or maybe a little bit more. 

 

So it was understood that flu could be a huge problem, and then there were the coronaviruses. There had been the outbreak of SARS and then the outbreak of MERS. Neither of those had killed all that many people, and neither SARS nor MERS ever became a significant factor in the United States. But it was understood that there was the potential for a coronavirus to run rampant, and that worried the public health establishment some. 

 

But all that said, the primary focus was not on infectious disease but on so-called lifestyle diseases. That is to say that the focus had shifted to things like diet, things like exercise. Diabetes was a constant focus. Now, one difficulty with the so-called lifestyle diseases becoming the focus of the public health establishment, in my judgement, is that it fueled what I would refer to as the politicization of public health. That is that a lot of the measures that public health experts urged on their constituents were controversial. Think about the limitations on Big Gulps in New York and so forth. 

 

So I think coming into the COVID-19 disaster, we had — already, the public health establishment had a little bit shaky credibility, had perhaps reduced its credibility just a bit with a significant chunk of the electorate. And the public health establishment has, I think, to some extent admitted this, that their recommendations had become tinged by political leanings. 

 

So I think the primary example of this is the attitude toward globalization, that there had arisen a sense that travel bans, international travel bans in particular, would not be recommended because of the commitment of the public health establishment to globalization, to the free flow of medicines and doctors, and to the free flow of commerce, frankly. 

 

So member states of the World Health Organization, which had gathered, not surprisingly during the SARS epidemic, had arrived at the conclusion that it was crucial to balance public health needs with the economic consequences of interfering with travel and trade, so guidelines that they did not explicitly prohibit countries from closing borders in response to potential disastrous epidemics, as we saw from COVID-19. Nevertheless, the guidelines very much discouraged this. 

 

But as The New York Times wrote in a recent story, with, I think, admirable honesty, the rules crafted by public health experts were never based on scientific evidence. They were assumptions that closed borders could slow the arrival of medicine or that closed borders were simply bad because they could hurt the world economy. No one studied carefully whether restricting travel might slow a fast-spreading, highly infectious disease like, well, COVID-19 turned out to be. There was no collecting of data, no effort to collect data on such interventions. 

 

Said Larry Gostin of Georgetown Law School, quoting a leading public expert who was very much, as he now admits, on board with these no travel ban guidelines, quote, “We didn’t think we needed to measure them because we thought we knew,” said Professor Gostin. “Clearly, we didn’t.” So this set us up, I think, quite badly for COVID-19 in that the — because the idea of international travel restrictions was so beyond the pale, they were not put in place, at least not to any great extent. When they were put in place, they tended to be, I think, far more controversial than probably they should have been. 

 

Now, what about attitudes towards the law, though, in the pre-COVID-19 days? What was understood about the powers of government to respond to emergency? After all, we had seen vast expansions of government powers in the wake of, that is to respond to, the 2007 to 2009 financial crisis. We saw the Federal Reserve take on roles that would have previously been unthinkable. What was the general sense of government powers to respond to a pandemic like COVID-19? 

 

Very roughly speaking, there were two schools of thought. The first typified by Georgetown Law Professor Randy Barnett was police powers are now very broad. The basic powers exercised by state and local government in order to promote the public welfare, to protect the public health, those have limits, of course. But the limits are in the nature of equal protection limits of government not being able to behave in a certain way that singles out safe, protected classes. Or they’re of the nature of government can’t do things to more than such a great extent, anyway, trench on fundamental rights. But outside, Randy Barnett at least has argued, outside the context of fundamental rights and equal protection, police powers are virtually without limit. 

 

But there was an opposing school of thought, or I should say maybe a bit of a countervailing school of thought, which includes me, included and continues to include me, which says not so fast. It’s not that I disagree completely with Randy Barnett and others who hold his views. But I would say that’s not quite right, that although the police powers of state and local governments certainly appear to have expanded significantly over the course of the 20th and into the 21st century, it was not correct, at least from my perspective, to say that they were virtually without limit or that equal protection doctrine and fundamental rights doctrine were the only checks on the police power.

 

I think there were still vestiges of doctrines that required that there be something of a link between the government ends and the government means and government measures; that is, some kind of nexus that would — some kind of relationship that goes beyond the merely plausible. In particular, I argued that a lot of the precedents such as the famous Supreme Court precedent from 1905, Jacobson v. Massachusetts, a lot of the precedents that were read extremely broadly actually were quite limited by their terms. 

 

Jacobson v. Massachusetts, which you will see cited in just about every case about government responses to the COVID-19 pandemic, is a case involving the imposition of a $5 fine on a person who refused to get vaccinated for smallpox in Cambridge, Massachusetts. Could the City of Cambridge fine someone $5, probably more like a couple of hundred dollars or so in today’s money, but could they impose a fine for not being vaccinated for smallpox? The Supreme Court sustained this conviction, sustained the imposition of this fine. But I stress that that was a case about someone being fined. It’s not a case about forcible vaccination. It’s not a case about impingements on bodily autonomy. 

 

All right. So let’s shift from the before times, the before COVID-19 to government responses to COVID-19. What happened? When COVID-19 hit, we saw federal, state, and local governments putting in place measures that had, frankly, not been contemplated. First and foremost, we saw a huge uptick in surveillance, in governments keeping track of their citizens. And we still see that, and that may be — I’ll come back to this question at the very end of my presentation — that may be the big shift that is here to stay with COVID-19. 

 

In addition to ramped up surveillance of the populace, we saw, quote, “lockdowns.” But I say lockdowns because, of course, society didn’t lock down. We continued to have grocery stores. We continued to have, of course, deliveries. If we’d had a real lockdown, we would be cold and hungry, and we’re not because many, many, many workers have continued to travel and to interface with the public. What we have had is a division to and the governments have made distinctions between, quote, “essential and nonessential” businesses. And a lot of these classifications of businesses into the essential or nonessential category have been, frankly, not very well thought out and very difficult to support. 

 

Now, in addition to these, I’ll just call them semi-lockdowns, we have had school closures. And to me, that was the biggest surprise. There had never, to my knowledge, been contemplated by any of the public health experts who planned government responses to potential epidemics, it had never been contemplated that schools would close down so quickly and stay closed for so long. Of course, you might say in response, “We have technologies. We have Zoom. We have the internet, and so forth, Skype.” It would have been unthinkable to have significant school closures in the past, but technology changed all that and made it possible to contemplate. And so these big school closures really should not have come as such a shock. 

 

And yet, I continue to be surprised because in the run-up to COVID-19, there was a great deal of concern and there remains, rightly, a great deal of concern about the vastly different levels of access to information technologies and internet among United States students, especially in K-12. We know that there are enormous differences in terms of what sorts of abilities students have, children and adolescents have in order to avail themselves of the promise of the internet. And we know that students, by and large, students from richer, better educated families are able to have far greater access and greater ability to make use of the internet than many students who are not — do not enjoy such privileges. But we still saw these massive school closures. 

 

Again, as I mentioned, we saw a lot of differentiation between different kinds of activities, and it didn’t always make sense. Casinos open, at least to a certain extent, whereas churches, at least in Nevada, seemed to be a lot more restricted than casinos and some other places of entertainment. One can, of course, quarrel, and there are, of course, a great many disputes about whether or not these various distinctions drawn by — these various lines drawn by governments make sense. But the fact remains that there have been many, many, many classifications by many governments, and it’s impossible to make sense of them all. A lot of these classifications do seem to be extremely arbitrary, and they have been, as we will be discussing, the subject of a great many court challenges. 

 

Justice Alito in his recent speech to The Federalist Society I think summed things up extremely well when he said, quote, “The pandemic has resulted in previously unimaginable restrictions on individual liberty.” Justice Alito went on to make clear that he was not saying or even implying that there are not very serious and very worrisome effects on public health of this virus, nor was Justice Alito, of course, willing to offer any kind of view about the legality of COVID restrictions, much less about whether or not these restrictions were wise public policy. What he was pointing out, though, was that we have, quote, “never before seen restrictions as severe, extensive, and prolonged as those experienced in this nation now for most of an entire year.”

 

Now, what sorts of responses have there been in terms of lawsuits? The lawsuits, of course, came thick and fast in the wake of restrictions. We have seen, not surprisingly, lawsuits under the First Amendment, under pretty much every single basic First Amendment freedom, freedom of speech, freedom of assembly, and very importantly, freedom of religion. 

 

We have seen many, many, many Second Amendment claims, and the states have varied considerably in their treatment of gun stores and the extent to which places to buy guns have been viewed as essential or nonessential. So we’ve seen a number of challenges. We’ve also seen, interestingly, a number of climb-downs by states in the — after Second Amendment challenges have been filed. 

 

We have seen a number of Fourteenth Amendment challenges, particularly with respect to abortion rights. Again, we see differences. We’ve seen great, significant differences in how state governments have viewed medical services and how there have been limitations on what are classified as elective procedures. I don’t really like the term elective procedure because it makes it sound as if something is trivial or not important, whereas, of course, many elective procedures are absolutely essential, and so forth. So not surprisingly, we’ve seen a great many lawsuits along those lines. 

 

The courts have responded in a number of ways. And after a few months of these lawsuits and a few months of court responses to lawsuits, I think we have reached the point where we can reach, or where I can offer, anyway, a few basic conclusions about what we’ve seen so far in terms of court responses. 

 

First, it has not been the case that courts have stepped back. Before the COVID-19 crisis, there was a fairly healthy literature suggesting that in times of grave crisis, judges would pretty much cede their power, and the executive would be able to rule unlimited, or pretty much unlimited. That has not turned out to be the case. There have been a handful of decisions where judges have suggested that judicial review is suspended or close to suspended during a crisis like the one we’ve faced with COVID-19, but those have been few and far between. For the overwhelming majority, courts have seen themselves as having a role, an important role in terms of offering oversight of government response to COVID-19. 

 

Now, second thing that I think we can say as a preliminary judgement after these initial months of court cases in response to challenges to government actions taken in response to COVID-19 is that courts are, not surprisingly, most sure-footed when they confront allegations of defects of process or allegations of violations of principles of separation of powers, both on the state and federal level. So there have been a number of the challenges to COVID-19 measures that have met with success, have, in effect, brought administrative law, usually state administrative law, challenges, or some kind of separation of powers challenge. And that, not surprisingly, was something we saw from the get-go.

 

Now, as time has worn on, though — this brings me to my third preliminary judgement about court responses to the COVID-19 restrictions — courts have become, I believe, a bit more comfortable in requiring governments to offer justifications or at least some kind of plausible nexus between something or some kind of nexus, some kind of more than vaguely plausible connection between the harms that the government is seeking to ward off and the restrictions put in place on the populace. And I expect for courts, too, as this crisis continues, as COVID-19 continues, I expect courts to be even more willing to hold government’s feet to the fire, to, in effect, ask governments to justify these restrictions that they are imposing. 

 

Now, I said I would say, turning to my fourth subject, I said I would say something about the COVID-19 restrictions on civil liberties in the broader context of economic liberty and property rights claims. So let me just devote a few minutes to that topic. In the years before the COVID-19 epidemic, it seemed to me that courts, including the United States Supreme Court, were a bit more willing to find that government action was unconstitutional in terms of trenching on property rights or economic liberties. 

I don’t mean to overstate this claim. It is still the case that we are a very heavily regulated economy, that there are comprehensive regulations on the local, state, and federal level, that the vast majority of these regulations are indeed constitutional. Nevertheless, there had been, I believe, anyway, a receding of the tide from the days when courts would sustain just about anything as constitutional, when, in effect, courts were unwilling to look at all at whether or not a particular action of the government was a taking of property or some kind of infringement on economic liberty. 

 

So we had seen movement, I think, in the area of eminent domain, particularly on the state constitutional law level. We had seen potential movement in the area of civil forfeiture with certain indications the United States Supreme Court might — I do stress, might — be amenable, be open to reconsidering, at least to some extent, some of its sweeping precedents sustaining the constitutionality of civil forfeiture actions. 

 

We saw moderate movement, or so I would characterize it, in the area of occupational licensing where a number of challenges to occupational licensing laws generally brought on First Amendment grounds but sometimes on due process grounds had met with success, particularly in federal district courts and even some at the federal appellate level. So all that added up, in my view, anyway, to the possibility that restrictions on economic activity, restrictions on property rights would actually get a bit more of a sympathetic hearing by courts. That had been the case, at least, for most of the decades since the New Deal. 

 

So when COVID-19 came, followed, of course, by a staggering number of restrictions, one obvious question is, well, is this going to lead to a reversal of what had been a pretty significant trend, or at least a moderate trend, with courts showing more concern about potential violations of economic liberty and property rights? With the movement for property rights no longer being a kind of stepchild, was that going to be set back by the fact the governments were putting in place so many restrictions in response to COVID-19? 

 

Or is it possible that COVID-19 and the government’s restrictions, the severe government restrictions on economic liberty and property rights, is that going to accentuate what had already been a pretty strong trend? Are we going to see courts, in effect, be even more willing to look very carefully and scrutinize government actions that significantly restrict economic liberties and significantly trench on property rights? 

 

I think that’s a series of very tough questions. I await with great interest on developments, as you can imagine. This is something that I have written on in the past, and I expect to write on this more in the future. In particular, I’m watching with great interest whether or not takings claims are going to be brought in the wake of COVID-19 in order to compensate some of the property owners, particularly small business owners, who have had to bear such a disproportionate share of the cost of dealing with COVID-19. 

 

I have argued that the Takings Clause can be an extremely useful means of ensuring that burdens are shared among the public. That is that even if closures of businesses and so forth are sustained as legal in the heat of a pandemic, maybe afterward when things have returned to something approximating normal, maybe at that point, business owners might be able to successfully bring takings claims and get some compensation, perhaps not full compensation, but at least some compensation that will make up somewhat for the terrible losses that they have suffered. 

 

Anyway, I suspect that we will be seeing even more takings claims. We’ve already seen a smattering of them. We’ve seen quite a few takings claims being brought in the wake of COVID-19, and as I say, I will watch with great interest whether or not any of those takings claims gets significant traction.

 

All right. Finally, I said I would wrap up with the question of what next? What can we expect is going to come? Will COVID-19 and the severe government restrictions on civil liberties provide a model for going forward? After all, many have suggested that climate change is an existential threat, that severe government restrictions on personal activity, energy use, perhaps automobile use, water use, and so forth, are going to be not only advisable but absolutely essential in order to deal with climate change. Are the restrictions that we’ve seen put in place to address COVID-19, are those going to be, in essence, the precursor to a new kind of world where any significant threat or anything that a group of experts assess is a terrible threat can be met with significant restrictions on individual liberty? 

 

Or, as a number of people have argued, is that being overwrought? Is that simply wrong? Relax, civil libertarians, or so I’ve been told at a number of events since the COVID-19 pandemic began. The restrictions put in place by governments, or so their arguments go, the restrictions put in place by governments in response to COVID-19 are politically self-limiting. The tolerance of the people for being semi-locked down this way is quite limited. Look at how many people already are evidencing lockdown fatigue. 

 

Look how many governments, state and local governments, understand that even as they put in fresh new restrictions — a number, as you know, have been put in place over the last week or two — they understand perfectly well that they’re not going to be able to enforce them. Ultimately, it will be up to the people. And what we are seeing is that people are not willing to be locked down, not even semi-locked down, in perpetuity. They are, in effect, going to rebuff, going to rebel against or push back hard against any idea that the severe restrictions of COVID-19 are going to be the new normal.

 

But at the same time, I would say there is reason for grave concern. I think on balance I probably net out fairly optimistic. I do think that the people of the United States have pushed back pretty hard on some of the restrictions. I do think that, by and large, the electorate is going to require, is going to demand that restrictions put in place have some fairly clear and proportionate relationship to actual dangers. 

 

But at the same time, there have been some things during the COVID-19 crisis that have caused me some worry, and I will name two in particular. First is the ramp up in surveillance. Simply put, we have seen government, in effect, increase its surveillance and, very importantly, increase its capacity for surveillance. There have been good reasons for governments to do so, but the fact remains that surveillance has been vastly increased. And there are serious questions as to whether or not that can be rolled back.

 

Second thing that worries me is we have seen the use of models to justify significant government restrictions, even though those models — I am thinking now of models produced by epidemiologists that made predictions about COVID-19 mortality and morbidity — those models were not based on anything we knew about COVID-19. COVID-19, after all, was a new illness. Many of them were based, roughly speaking, on influenza. But COVID-19 is not a variant of flu. And so we saw models being used to justify severe government restrictions when those models were — frankly, there was no particular reason to think that those models were terribly apposite. 

 

The parallels to the models that we see in the context of climate change are, to me, anyway, quite worrisome. Many of the climate change models have not done terribly well in terms of predicting various events, various climate and weather events. But is it possible that the invocation of models in the context of COVID-19 will indeed set an unfortunate precedent? I hope very much that there will be a lot of discussion about models and their uses. A lot of statisticians are very fond of the adage, “All models are wrong, but some are useful.” And I think that is correct. I think it’s very, very important to keep that in mind. 

 

I am not rejecting models altogether. I am not suggesting that none of the models put together by epidemiologists have been at all useful. I think that would be a gross overstatement. What I am suggesting is that the unreflexive acceptance of models, particularly models that are grounded in experiences very different from the ones that we are in the middle of, that those are very likely — generally will do, I think, more harm than good. And we simply need to be extremely careful. 

 

So with all that, I will turn this over to you all. I am eager to hear your questions and your comments and your own experiences your own thoughts about where things might go from here. So thank you. 

 

Gregory Grisham:  Well, thank you very much, Professor Mahoney. I’ve got a question for you, and we have some questions that have come through. It’s been a couple of years since I was in law school, so I’m going — you can educate us on this. We know the federal government is limited, at least theoretically, in what they can do. And you hear talk during the political season about a better federal response to COVID-19. What can the federal government do constitutionally to, I guess, intervene across the country and impose restrictions on activity, human activities, on sort of a broad scale? Is there any constitutional authority to do that?

 

Prof. Julia Mahoney:  Yes. The federal government, as you know, is a very strong government which has very strong powers. That has been true since the inception of our nation. It has been a government of strong but, of course, not unlimited powers. So the federal government, of course, has the power to regulate interstate commerce, and that is, I think, the strongest power in terms of responding to COVID-19. But of course, there are also various national defense powers. And a lot of what the federal government might be interested in doing can indeed be justified in terms of its powers, indeed, its duty to defend the nation. 

 

Now, that said, of course, the state and local governments have primary responsibility for safeguarding health and safety. It is the state and local governments that have the so-called police power. So state and local governments are at the first line of, I think, promoting public health and safety. And those police powers have always been broad in the case of imminent threats. Epidemics of various sorts have been a significant danger from the inception of the United States. After all, we had yellow fever, smallpox, and so forth, malaria, throughout U.S. history. 

 

Before, roughly speaking, the New Deal era, the police powers were understood to be somewhat limited in the sense of there needing to be a fairly clear connection between the threat to public health and what the state and local governments were doing. In the post New Deal era — and this is one of the controversies that was bubbling along before COVID-19 —in the post New Deal era, there were, as I mentioned earlier, someone like Randy Barnett who said that the police powers of the state and local governments are very, very, very broad, and it’s going to be very difficult to rein them in unless you can point to some kind of protection argument that identifies some type of suspect class which is being disproportionately affected or point to some sort of fundamental right. That’s the part where I somewhat disagree with Randy Barnett and think that, actually, the police powers of the state and local governments have been somewhat circumscribed.

 

But getting back to your question about the federal government, could the federal government, say, impose a mask mandate and so on, I am pretty skeptical about that. I think that the federal government remains a government of limited powers, and that anything that looks like a basic health and safety regulation will be open to constitutional challenge.  

 

Gregory Grisham:  Okay. Well, very good. I’ve got a couple more questions. I’d just like to say, though, for anybody listening in today that’s very concerned about climate change and the human contribution, there’s a very good book I’ll recommend because I didn’t know anything about it. I read this, and it’s fascinating. It’s called Inconvenient Facts by Gregory Wrightstone. You can get it at a bookstore, on Amazon. It really explains it so even people like me who really aren’t up on science can understand it and feel better about life after reading it. So I would recommend that book to everybody.

 

Professor Mahoney, we have a question here from one of our attendees. I’ll read it to you. “Do you have the opinion that Jacobson was abrogated by implication through the rise of modern civil liberties as suggested by Judge Stickman in Butler County v. Wolf?”

 

Prof. Julia Mahoney:  I think Jacobson has always been a limited opinion. So I would say that Jacobson, which gets cited in many, many instances, being this incredibly broad opinion, “Oh, the government can make you be vaccinated, so this means they can do just about anything.” 

 

I think Jacobson is actually quite constrained. All Jacobson stands for is the proposition that someone who refused to be vaccinated at a time when the smallpox vaccination was significantly more dangerous that it was to be a couple of decades later and was fined $5 — which in early 20th century Cambridge, Massachusetts, was not a completely insignificant fine; it was not a trivial fine — but nevertheless, that that would be sustained as constitutional. So I don’t look at Jacobson v. Massachusetts as in any way, shape, or form being a solid precedent to justify months-long restrictions on personal travel or on the ability to make a living or anything like that. I think Jacobson at the day it was decided was a precedent that was fairly limited. 

 

Now, it’s interesting that Jacobson should have been cited in so many contexts and cited so broadly by the Supreme Court. And I think the first time or one of the most important times that we see Jacobson cited almost casually to justify a government action that is way, way, way broader than what was actually going on in Jacobson was in Buck v. Bell, the forced sterilization case decided by the Supreme Court in the 1920s. 

 

So there’s this very interesting, to me, anyway, progression that happened, of course, very fast from 1905 to I think about 1927 — I think Buck v. Bell was 1927 — where by 1927, Oliver Wendell Holmes is citing Jacobson v. Massachusetts to sustain the constitutionality of a Virginia statute that provides for the involuntary sterilization of a young woman based on little more than a hunch on the part of some physicians that she is mentally defective in some way, in their eyes, anyway. 

 

And so from then on, Jacobson v. Massachusetts keeps getting cited as a very, very, very broad — as sustaining the constitutionality of an extremely broad exercise of government power. My own view of Jacobson is that it’s always been quite limited and that we ought to read Jacobson very carefully and understand that Jacobson does not stand for the government can do just about anything in response to an epidemic. 

 

Gregory Grisham:  All right. Well, thank you, Professor Mahoney. We’ve had another question here. It seems like in some — this is more focused on states. In some states, it seems that governors have singled out particular counties for different treatment. I’ll just read the question to you. “What are your thoughts on states/governors that target specific counties for greater restrictions, presumably because they are more populist? Isn’t there a risk to eventually target cities/counties for all types of reasons? For example, if crime is higher in one county, a curfew may be implemented, those types of targeted restrictions.” Can you comment on that, please?

 

Prof. Julia Mahoney:  Yeah, I think that, frankly, just about anything governors do that is plausible and that has been well thought out is going to be presumed to be — going to carry with it a strong presumption that the governors are acting within the scope of their legal powers or that what they do is constitutional. What I am seeing, very roughly speaking, as the months have gone on is courts being more comfortable requiring a showing of some nexus of some plausible connection. 

 

I think the plausible connections are fairly easy or relatively easy to show where there are significant differences in population density. This is, of course, a fast-moving area because we are learning so much about COVID-19, and we still, I emphasize, do not know very much about precisely how this is spreading. So as we learn more and have better ideas about precisely how this very contagious virus spreads, I think that’s going to make a significant difference in terms of which sorts of government restrictions strike courts as being within the realm of reasonability. 

 

But at this point, I think all governors need is something that is relatively plausible. And again, if you just look at different population densities, I think that pretty quickly moves you into the area of relatively plausible in terms of making distinctions among different areas of the states. 

 

Gregory Grisham:  All right. Well, thank you. Another question — I know all states’ constitutions are similar in many respects, but they’re all different to some degree. In Tennessee, we have a constitutional provision that says a man’s particular services shall not be taken without just compensation. And the question is, have the claims already asserted relied upon this type of language in their state constitutions, or is it just a reliance upon the general property Takings Clause?

 

Prof. Julia Mahoney:  I think these are some of the most interesting questions that I think are going to come out of these events, whether or not we will see there being a significant number of instances where some kind of compensation is ordered for those who have been economically severely harmed, even economically devastated as the result of this virus and the government restrictions. 

 

One thing, of course, that will make it extremely challenging to figure out what the measure of damages will be, assuming that some of these takings claims under either the federal Constitution or under various state constitutions do get traction, it’s going to be difficult to measure the damages because it’s going to be hard to parse out how much of the economic harm is due to the government restrictions and how much of the economic harm is due to the fact of the virus. 

 

Even in the face of no government restrictions on activity, we would be seeing, of course, some very severe, and for many people, catastrophic economic consequences because there’s a lot of reason to think that even without government restrictions, a lot of people would have been changing their behavior. A lot of businesses would be in severe economic difficulty, even without actual government orders, even without the lockdowns or semi-lockdowns. But that said, I don’t think it’s impossible that we will see compensation for some of the individuals who have suffered the greatest economic harm from these events. 

 

Gregory Grisham:  This is another question that we’ve received. I’ll just kind of paraphrase it for you. A lot of the — really, most of the economic damage from a business standpoint has occurred with smaller businesses which employ about half the — I think the Small Business Administration statistics show that half of all American workers work for companies that have 500 or fewer employees. So it seems like restaurants, other small employers really have been disproportionately impacted by restrictions while a lot of very large corporations like Amazon and companies that are very popular that have a great online presence, grocery chains and things like that, have prospered. 

 

Do you see any — in terms of challenging restrictions and possibly trying to get compensation because of the restrictions, do you see, I guess, an argument from smaller business pointing out just the fact that the restrictions actually penalized smaller businesses versus corporations? Is there any talk of a legal argument — I can’t think of one — where there was some disparate treatment in the regulations? There’s maybe a disparate impact, so to speak, to bar it from the employment area. Is the size of the business and the relative harm cost, does that play any role? Does that create an argument for anybody?

 

Prof. Julia Mahoney:  I think you’re absolutely right that it is difficult to fashion points like that into arguments, given current legal doctrine. But I also think that your instinct that it makes a difference whether it could potentially give rise to a stronger claim, including stronger takings claims, where, for example, a neighborhood pharmacy has to shut down, but Walmart can remain open with its prescriptions counter open. 

 

Things like that seem to be fundamentally unfair. And it seems to me that a sympathetic plaintiff like the neighborhood pharmacist who had to shut down while big box stores were able to keep running, I think a plaintiff like that is going to be, from a practical perspective, a more sympathetic plaintiff. And all other things being equal, sympathetic plaintiffs are — it’s better to be representing a sympathetic plaintiff when doing something like a takings challenge than an unsympathetic one, or a less sympathetic one, I should say. 

 

So I think it is plausible that we will see some suits brought, including some takings claims, on behalf of small business owners. And I think it is possible — I’m speculating here, obviously — that some of those challenges will be successful. And I think that if one can point to the fact that a smaller store had to shut down while a larger business was permitted to keep running, I think that that does perhaps make for a stronger case. 

 

Gregory Grisham:  Okay. Well, we’re nearly out of time here. I’ll just ask one more question, though. Just in terms — we appreciate your discussion, and it’s all very interesting. But at the end of the day — we have the courts to have recourse to, but at the end of the day, if citizens are upset with restrictions, really the best recourse is to vote. It’s a political response, and elect leaders who pledge to try to protect the public health without doing it in a way that’s so draconian and damaging to people. Is that fair to say? Is that really the ultimate way to try to fix the problem?

 

Prof. Julia Mahoney:  Well, yes. But of course, there’s a time lag. And there are — now, some public officials can be recalled, so that is a possibility that I imagine a number of electorates are examining. But not every public official can be recalled. And where public officials can’t be recalled, it can be a long time to be able to put in a more effective team of public officials. So I do think that ultimately, yes, in a democracy the right to vote is the ultimate protection. There is no better protection than the franchise of civil liberties. 

 

But that said, I think the courts are formidable, or potentially formidable protectors of civil liberties. I think the courts have made it clear that they are not going to stand down. There is no idea among judges, as I mentioned just a handful of exceptions, that in time of crisis, judicial review is or should be suspended. Courts are, of course, hesitant to bigfoot decisions by the political branches of government, particularly as the political branches of government generally have better and more extensive and more up to date information about the precise details of a crisis. 

 

But that said, we have seen a number of courts find that the governments have overstepped. And as I mentioned, courts are most confident doing so when it comes to administrative law, separation of powers challenges, and so forth, that is anything in their wheelhouse. Courts will be, generally speaking, a bit more confident and a bit more willing to say that the government has gone too far. 

 

But we’re also now seeing courts willing to, at least some courts in some places with some arguments brought, courts willing to find that government has overstepped when it comes to fundamental rights. So I expect to see more First Amendment and Second Amendment challenges, in particular, meet with at least some limited success and so forth. And so in addition to the all-important franchise, I think the courts have shown themselves and are showing themselves to be committed and capable defenders of civil liberties. It’s simply that the courts are going to understandably proceed quite carefully.   

 

Gregory Grisham:  We’ll get today’s final question. This will be a short one. Given the good news that has come out in the last couple of weeks about a COVID-19 vaccine by a couple of different companies, which is all good news for us, for everybody, do you think the presence of an imminent vaccine like that that would protect the population, would you think that for someone who makes a legal challenge, these increasing — we know these restrictions now are increasing. In fact, I just saw an email while we were on the Zoom call that Shelby County, which is Memphis, is going to impose tougher restrictions, probably close gyms and things like that. 

 

So is the fact that there’s a vaccine that’s imminent in the next couple of months, is that an argument to — would that weigh in or have any weight in making an argument to the court that restrictions are, I guess, over — not nearly tailored or what not? Is that an important fact, would you think, to an argument?

 

Prof. Julia Mahoney:  It’s an interesting question. I doubt it because I think that there are so many — just for starters, good news on the research front may not translate into an actual vaccine ever, or even for a very long time. And then there’s the fact that no one thinks the vaccine is coming in the next few days, or even necessarily the next few weeks. And meanwhile, an awful lot of people can get very sick or die. So, no, on balance, I do not think that good news about a vaccine, certainly not the kind of good news that we’ve had so far is going to have any appreciable impact on the assessment of the legality of any of the restrictions that are being put in place right now.

 

Gregory Grisham:  Well, as a final, let’s say that these restrictions go on for a couple of months, and the vaccine does go on the market. Would you think if the vaccine actually did come on the market, that would be a pretty good argument to challenge the restrictions?

 

Prof. Julia Mahoney: At that point, I think that, yes, we have seen more and more of courts, I think, asking more — looking at whether government restrictions do seem to be reasonable. They are not interested in being rubber stamps for just about anything a government can think of a vaguely plausible justification for. So if we end up in a world where the vaccine is freely available and just about no one is vulnerable to this disease, then these restrictions will seem absurd. But so much of it will depend on the efficacy of the vaccine and the willingness of people to have the vaccine, too. 

 

I’m very interested, as you might imagine, in the question of whether or not mandatory — whether or not making vaccines mandatory or saying — or severely limiting the mobility of people if they haven’t been vaccinated, including occupational choice, whether or not those would be sustained. I think we may well be confronted with some cases along those lines.

 

Gregory Grisham:  Thank you so much, Professor Mahoney, for spending some time with us today. We all enjoyed your presentation. I’ve gotten a number of very positive emails and little messages about your presentation, so thank you. We wish you a happy Thanksgiving and merry Christmas and a happy New Year, and we hope you’ll join us again sometime soon. We’ll invite you down when everything lifts, and we’ll take you out for some barbeque. 

 

Prof. Julia Mahoney:  Well, thank you. Thank you very much for having me. And as I mentioned, I would love to see you all in person, so I hope that will happen.

 

Gregory Grisham:  All right. We’ll hopefully make that happen in the next year or so. But anyway, thanks so much. And we’re adjourned for the day. Thank you, everybody. Have a great afternoon. 

 

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Conclusion:  On behalf of The Federalist Society’s Regulatory Transparency Project, thanks for tuning in to the Fourth Branch podcast. To catch every new episode when it’s released, you can subscribe on Apple Podcasts, Google Play, and Spreaker. For the latest from RTP, please visit our website at www.regproject.org.

 

[Music]

 

This has been a FedSoc audio production.

Julia Mahoney

John S. Battle Professor of Law

University of Virginia School of Law


J. Gregory Grisham

Of Counsel

Fisher & Phillips, LLP


State & Local
FDA & Health

Federalist Society’s Memphis Lawyers Chapter

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