I have been a consistent critic of coronavirus shutdown restrictions across the country, and I have begun to write what I hope will be my second published law review article stating my theories. To date, no courts have adopted my theories, and no states have realized the error of their ways. I suppose that it is wishful thinking to expect judges and people in positions to listen to a freshly minted law graduate who is still drying his feathers about how their approach to constitutional doctrine is totally erroneous.
Nonetheless, governors who have imposed coronavirus lockdowns are spelling the doom of their coronavirus restrictions with their comments on the ongoing Black Lives Matter protests.
As I half-jestingly described at a recent CT Liberty Rally, the reasoning for coronavirus restrictions has been malleable to say the least. The first line of reasoning was ostensibly to prevent the medical system from being overwhelmed. In other words, we were all going to die, but the state wanted to control how fast we died. The second line of reasoning was to prevent the spread of the “contagious” coronavirus. It turns out that it may not be as contagious or dangerous as we were led to believe. The third and latest line of reasoning appears to be that we face an uncertain disease that no one can predict and that the state needs to make responsible choices for everyone because people are incapable of doing that for themselves.
I viewed all of these lines of reasoning contemptuously. In my view, there is no public health emergency exception to the United States Constitution despite the U.S. Supreme Court’s creation of one in 1905 in a case called Jacobson v. Massachusetts. My views aside, each of the lines of reasoning bears some relationship – tenuous in some cases – to Jacobson‘s public health emergency exception doctrine, which the courts have applied quite expansively.
Chief Justice John Roberts of the United States Supreme Court reinforced this dutiful adherence last week when he penned a brief concurrence to the Supreme Court’s denial of a California church’s application for emergency injunctive relief. The Chief’s concurrence – unsigned by any other justice – served as a glimpse into the minds of the five justices who voted to deny the application. Roberts declined to apply the traditional First Amendment doctrine advocated by Justice Kavanaugh and joined by Justices Gorsuch, Thomas, and Alito. Instead, the Chief embraced Jacobson‘s emergency rationale to defer to political officials during a public health emergency.
What Chief Justice John Roberts did not touch on was the standard of review that Jacobson mandates. Contrary to most state officials’ view, Jacobson does not absolve the Article III courts from reviewing the constitutionality of public health emergency measures. However, Jacobson requires a standard of review that is extraordinarily deferential to state officials, thus making it extremely hard for citizens to prevail against their governments. The Jacobson standard reviews a government action for arbitrariness that is “not justified by the necessities of the case”.
“Arbitrariness” is a legal terms of art – the meaning of which can easily be disputed by competent lawyers. However, the Jacobson Court provided some guidance, stating that “arbitrary” and “necessities of the case” review safeguards individuals when the state exercises its police power “in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or [goes] so far beyond what [is] reasonably required for the safety of the public, as to authorize or compel the courts to interference for the protection of such persons.” Borrowing from Second Circuit Takings jurisprudence, unconstitutional arbitrariness can be defined as “when the government acts with no legitimate reason for its decision.” Southview Assoc., Ltd. v. Bongartz, 980 F.2d 84, 102 (2d Cir. 1992) (internal quotation and citation omitted)
That leads me to the Black Lives Matter protests and various government officials’ comments. For example, Nevada’s governor outright encouraged his citizens to band together and spoke favorably of the protests despite his state’s ongoing coronavirus restrictions including bans on gatherings. In New York and Connecticut, no efforts have been made to prohibit and discourage assemblies for the Black Lives Matter protests that feature hundreds and and thousands of protestors. Rather, government officials have expressed that their sympathies lie with the protestors.
The end result is selective enforcement. Churches are cited and fined for opening their doors on a Sunday or exceeding a gathering restriction. Business like bars and restaurants cannot serve their historical function of acting as gathering places for the discussion of public events and other topics. They will be fined, cited, and lose their business license. All the while, protests do not face any such consequences.
If Black Lives Matter protests are permitted and encouraged by state officials, why not other gatherings? Based on the reasoning supplied to us by the state officials, the protests are greater breeding pools for the coronavirus than smaller scale gatherings by businesses and churches that can take responsible precautions to mitigate risks.
I am not saying that protests should be busted. I will be the first person defending the right of anyone to speak and assemble freely regardless of whether I agree with them or not. I also have been one of the people in the country attacking the shaky foundation upon which Jacobson rests and arguing for the application of modern constitutional doctrine.
However, state officials’ attitudes toward two very similar constitutional interests have been markedly different and for no other reason than a sympathy with the content of the messages being expressed. It does not take a lawyer to tell you that is an arbitrary action, and it undermines whatever vestige of reasonableness that coronavirus restrictions possessed to begin with.
The Black Lives Matter protests have succeeded in destroying the constitutional basis for the coronavirus restrictions. Will the courts recognize it?