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Courts may reconsider temporary coronavirus restrictions as pandemic drags on


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Courts may reconsider temporary coronavirus restrictions as pandemic drags on

Pennsylvania Gov. Tom Wolf (D) is appealing the ruling Monday that found the state’s limits on gatherings and the closure of nonessential businesses are unconstitutional. U.S. District Judge William Stickman IV’s 66-page ruling echoes language about individual rights and liberties that President Trump and his aides have used in demanding that states open up. Trump…

Pennsylvania Gov. Tom Wolf (D) is appealing the ruling Monday that found the state’s limits on gatherings and the closure of nonessential businesses are unconstitutional. U.S. District Judge William Stickman IV’s 66-page ruling echoes language about individual rights and liberties that President Trump and his aides have used in demanding that states open up. Trump quickly celebrated the decision as a sign of things to come.

The ruling is considered an outlier, however, as most courts have so far upheld the power of governors or mayors to impose restrictions to contend with an urgent public health emergency.

The decision stands in contrast with Michigan, where the state appeals court ruled in August for Democratic Gov. Gretchen Whitmer, denying Republican lawmakers’ challenge of her emergency declarations.

But even if Stickman is overruled, his discussion of the frustrating limbo for businesses and people is likely to resonate in the charged political debate surrounding the reopening of schools, businesses, churches, concert halls and more.

At a “Latinos for Trump” roundtable Monday night, the president claimed, without evidence, that states will open everything Nov. 4, the day after the election in which he is seeking a second term. He said he hopes other judges will strike down coronavirus mandates. Trump hailed the ruling again Wednesday, calling it “a big legal victory.”

Business owners, private citizens and GOP state lawmakers have filed suit against restrictions put in place by governors, many of whom are Democrats. Although courts have thus far shown broad deference to governments and public health authorities, the judiciary is showing signs of frustration with emergency orders that, many months into the pandemic, override normal rulemaking and legislative processes, said Lindsay Wiley, director of the health law and policy program at American University’s law school.

The Pennsylvania ruling is an example, she said, but judges have expressed qualms even in rulings that upheld restrictions.

In July, the Texas Supreme Court rejected a case calling the state’s shutdown unconstitutional, saying it lacked jurisdiction. But in comments, one justice expressed concern that Gov. Greg Abbott was doing the work of the legislature and might issue additional executive orders if coronavirus cases resurge, “which will be made under a still-existing state of disaster proclaimed under a still-existing (constitutionally questionable) statute.”

In Maine, a federal judge upheld the state’s 14-day quarantine for out-of-state travelers, but wrote that “presumably there comes a time when prudent fears [about the virus] give way to the hopeful spirit that informs our migratory nature and the fair-mindedness that presumptively guides the application of police power.”

And in Ohio, a county judge blocked the state from enforcing the closure of gyms and health clubs, writing that the state health director had “acted in an impermissibly arbitrary, unreasonable, and oppressive manner” by closing businesses for weeks on end.

“I think we’ll continue to see a great deal of deference,” Wiley said. “But I do think we’ll see increasing impatience across the board.”

Trump has repeatedly criticized Democratic governors’ efforts to curb the spread of the virus, and claims Democrats are manipulating pandemic rules to hurt him.

At least 193,000 people have died of the coronavirus in the United States, including more than 1,100 deaths reported Wednesday. More than 6.5 million U.S. cases have been reported. New cases have declined markedly from the height of the pandemic in July and deaths have declined from the spring, when more than 1,500 people a day typically died.

The underlying level of infection remains high, however, and the virus is still passing freely from person to person in much of the country. There is no fully effective treatment and no vaccine.

Trump predicted again Wednesday that a vaccine against the virus would be available this year. At times he has said it could come before the election. Centers for Disease Control and Prevention Director Robert Redfield told Congress on Wednesday that vaccines will not be widely available until the middle of 2021.

Lawrence O. Gostin, professor of global health law at Georgetown University, said the Pennsylvania ruling is “a bit of a polemic” and lacks nuance. He nonetheless thinks the ruling will have a “chilling effect” on officials in Pennsylvania and beyond.

“It’s going to chill any action, because you’re afraid you’re going to be embroiled back in litigation. You’re not sure whether you’ve got the power and you’re acting in the shadows of a very unfavorable ruling,” Gostin said. “In most of the hot spots in the South and West at the moment, there’s a lot of politicization of the pandemic. . . . And so basically it’s saying to governors and public health commissioners, ‘Be decisive at your own risk.’ ”

A big question in public health law is how far an executive, such as a governor, can go without legislative approval. An emergency like a rapidly spreading virus, though, requires swift action, which most courts have acknowledged, he said. Gostin said he doesn’t think the rising and falling nature of virus transmission changes that.

Like Wiley, Gostin said lawsuits over a governor’s legal authority and separation of powers are more likely to succeed than those about individual liberties. But he said cases over quarantines of out-of-state travelers are also “much closer calls” than others, because states are not allowed to restrict the right to interstate travel.

Stickman, who was chosen for the federal bench by Trump, found that while Wolf and state officials had good intentions and were rushing to address a crisis, the state violated the First Amendment and the due process and equal protection clauses of the 14th Amendment.

The case stemmed from challenges to the state’s orders to close “non life-sustaining” businesses and to limit gatherings to 25 people indoors or 250 people outdoors. The complaints came from a group of businesses in Western Pennsylvania, Republican state legislators and four counties.

The full restrictions at issue have now eased, but a variety of limitations on businesses and gatherings remain in effect. The ruling also comes as governors and mayors consider whether to renew or reinstate some restrictions this fall and winter, when a potential surge in coronavirus cases may coincide with flu season.

“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,” the 66-page opinion concludes.

Chris Young, co-owner of Prima Capelli, a salon and day spa in Butler, Pa., said in an interview the restrictions were too broad and “bypass our rights as Americans.”

Rather than focus on the truly vulnerable, such as nursing home residents, or delegating to county governments, Wolf insisted on statewide rules, Young said.

“I’m sorry, but one man should never have that type of power,” Young said.

Young’s salon is back open but limited to half its usual capacity. He has been able to weather the closure and the reduction in business, but said he blew through savings. Other small businesses were not so fortunate, he said.

“The Constitution of the United States of America is something that we can never lose sight of. That’s what gives us the freedoms to be the type of country that we are,” Young said.

States have broad power — known as “police power” — to protect public health in an emergency, even when doing so infringes on individual liberties, legal experts say. And so far, most courts faced with some of the many thousands of lawsuits over coronavirus restrictions have allowed the orders to stand.

Pennsylvania’s Supreme Court, for example, upheld in May the state’s closure of nonessential businesses, calling the impact of them “not unduly oppressive.”

Several successful cases have not focused on violations of individual liberties, but rather on a governor or other executive’s authority to impose the restrictions, Wiley said.

In one high-profile case, the Wisconsin Supreme Court sided with Republican lawmakers who had sued Gov. Tony Evers (D), striking down an extension of that state’s stay-at-home order in mid-May and saying Evers had not followed proper procedures.

Tina Batra Hershey, assistant professor of health policy and adjust professor of law at the University of Pittsburgh, said Stickman made persuasive points about the need for executive administrations to “provide clear and transparent communications about what they’re doing, to ensure that there is a tailored response.”

That might mean articulating what steps will be taken to measure whether restrictions are working and when they can be lifted, she said.

She described an “evolution” in judicial tolerance for such orders.

“Now, we’re seeing, as the pandemic is extended and there’s more time to consider and we have more evidence, I think the judiciary will require more from the executive,” she said. “It’s not that their emergency powers have changed. It’s that the judicial review will have changed.”

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