Safe at Home? Legal and Liberty Concerns with Stay-At-Home Orders

Category: Print Issues

Safe at Home? Legal and Liberty Concerns with Stay-At-Home Orders

Trudy Henson

Volume 28

, Issue 2

28 GEO. MASON L. REV. 509 (2021)

Introduction: Covid-19 Comes to the United States

On December 31, 2019, China alerted the World Health Organization (“WHO”) of a pneumonia-like illness that caused strange, glass-like accumulations in the lungs of patients and was associated with a high mortality rate.¹ First identified in the city of Wuhan, the novel coronavirus—later to be named SARS CoV-2—quickly swept through China and Europe, leading the WHO to declare Covid-19, the illness caused by SARS CoV-2, a Public Health Emergency of International Concern (“PHEIC”) on January 30, 2020.²

Although later found to have been circulating undetected in the United States as early as January 2020,³ the first identified case of “community transmission” of Covid-19 in the United States was detected February 26, 2020, in California.⁴ At the time of illness, the U.S. patient had no known risk of exposure to Covid-19; the U.S. only had fifteen known cases, fourteen of which were directly attributable to travel.⁵

By March 11, however, the number of Covid-19 cases surpassed 100,000 globally, and the United States was reporting over 1,000 suspected or confirmed cases in forty-three states.⁶ As case numbers on the East and West coasts began to climb, governors began taking extraordinary measures, declaring states of emergency; encouraging (and later mandating) teleworking en masse; and closing schools and businesses. By the end of March, many states, including California, Oregon, Washington, New York, New Jersey, Maryland, and Delaware, would amend their emergency declarations to issue stay-at-home orders.⁷ Eventually, for the first time in U.S. history, all fifty states would be under governor-declared states of emergency;⁸ many of those would include stay-at-home orders as well.

In the face of an unknown virus, with no known treatment, limited knowledge on transmission, and testing shortages, the use of stay-at-home orders was a necessary response. Although debate centered on what constituted “essential businesses” (those allowed to stay operating during the shutdown), most residents in states with stay-at-home orders were, at least initially, compliant. However, as stay-at-home orders were extended and phased re-openings of states made clear that a return to “normal” was a long way off, civil and legal challenges multiplied.

Although Jacobson v. Massachusetts⁹197 U.S. 11 (1905). has long upheld a state’s right to take action to protect the health of its citizens, the Supreme Court acknowledged such rights were balanced against the intrusion on individual liberty: in times of crisis, unless a state’s action had “no real or substantial relation to” the crisis or the measures were “beyond all question, a plain, palpable invasion of rights secured by the fundamental law,” courts would defer to the state.¹⁰ The Covid-19 response measures have cast Jacobson’s holding in a new light, in a new century: What does the balance of civil liberties against the state’s interest in protecting its citizens look like in the twenty-first century?

This Article will examine the powers of the states and governors to issue emergency declarations to protect health; state-issued orders in response to Covid-19, focusing particularly on the quarantine, or “stay-at-home,” aspect of the orders; and legal and civil-noncompliance challenges to the orders to explore the long-term impact of these measures on individual liberty interests. To date, “[t]his century-old historical principle has been reaffirmed just this year by a chorus of judicial voices,”¹¹ and the tenets of Jacobson remain intact. In general, the shift has come from the public as they become more educated on the legal rights of a state, and their own inability to be “wholly freed from restraint.”¹² However, as the Covid-19 pandemic continues, current reasoning from the Supreme Court and others suggest that deference to state orders will diminish as acute crises become longer lasting, allowing for more nuanced and tailored responses.

I. The State’s Established Role as Protector of Public Health

The states’ broad powers to protect its citizens falls under the police powers, reserved to the states by the Tenth Amendment.¹³ In 1905, the Supreme Court upheld states’ right to protect the health and safety of its citizens in Jacobson, a case which contested the right of the state to compel smallpox vaccination during a smallpox outbreak. In Jacobson, the Supreme Court wrote:

Although this court has refrained from any attempt to define the limits of that [Tenth Amendment] power, yet it has distinctly recognized the authority of a state to enact quarantine laws and ‘health laws of every description’ . . . . According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.¹⁴

Unless a state’s actions had “no real or substantial relation to” the crisis or the measures were “beyond all question, a plain, palpable invasion of rights secured by the fundamental law,”¹⁵ the state’s actions would prevail.¹⁶ In Jacobson’s case, the Supreme Court found a properly enacted, constitutional vaccination requirement did not unnecessarily intrude on Jacobson’s individual liberty.

Furthermore, the Court famously wrote, “But the liberty secured by the Constitution of the United Sates to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.”¹⁷ Rather, the Court said the State must balance its interest in protecting the public safety against the intrusion on an individual’s liberty.¹⁸ Although “extreme cases” may “justify the interference of the courts to prevent wrong and oppression,”¹⁹ “the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint . . . as the safety of the general public may demand.”²⁰

In the over 100 years since Jacobson, most challenges to a state’s authority to protect the public health—from individual quarantine measures to requiring vaccinations—are typically decided in favor of the state based on the JacobsonCourt’s reasoning.²¹ Jacobson has been the touchstone for states’ public health powers, but public health legal experts have questioned how its tenets would withstand a modern, widespread pandemic, such as the Spanish Influenza of 1918.

A. States Grant Governors the Power to Take Extraordinary Actions in Declared Emergencies

While police powers are reserved to the states, the locus of that power is vested in the governor. States designate governors “Commander-in-Chief” through state constitutions, and usually charge governors with an affirmative duty to protect residents.²² In addition to constitutional power, states grant governors specific statutory powers as well. These statutes outline more explicitly the powers and procedures that enable governors to act—in this case, to protect public health safety.

Whether specific to public health emergencies or not, all states grant their governors the power to declare a state of emergency for either man-made or natural disasters. These declarations allow for the exercise of extraordinary powers, often allowing governors to suspend any statute, law, or regulation that may impede response. Specifically, the declarations allow a governor to deploy resources, expend funds for response efforts and resources, seize property, and order evacuations.²³ Most governors may “[t]ransfer the direction, personnel, or functions of state departments and agencies or units thereof for the purpose of performing or facilitating emergency services.”²⁴ In addition to these specific statutory provisions, most states include a broad grant of power to the governor to “[u]tilize all available resources of the state government and of each political subdivision of the state, as reasonably necessary to cope with the emergency.”²⁵ Finally, almost all states empower governors to order testing, vaccination, quarantine, and isolation,²⁶ although many require delegation to or coordination with the state health official.²⁷ As part of their affirmative duty to protect state residents, governors are also empowered to “prohibit or restrict contact between the State and the place affected by the disease.”²⁸

To many unaware of these long-standing powers, the breadth of these powers may seem surprising. But it’s important to note that these gubernatorial powers are exercised frequently in most states, often for weather-related disasters, and occasionally for public health threats, with little or no protest.²⁹ For example, seven states declared states of emergency for the H1N1 flu in 2009,³⁰ and states with outbreaks of measles have routinely used public health emergency powers, including mandatory quarantine and isolation orders, to prevent outbreaks from spreading.³¹ What is different about the use of these powers during the Covid-19 pandemic is the scale at which they are being employed: the use of broad stay-at-home orders by states, and multiple states at the same time, is unprecedented.

B. Governor’s Executive Orders in Response to Covid-19

As Covid-19 spread across the United States, states faced difficult decisions with incomplete knowledge. Although the virus was spreading like wildfire across Europe, little was known about transmission, testing was limited, and treatments were unknown. Furthermore, federal guidance was scant and as caseloads grew, governors increasingly became aware that decisions would rest on them.³²

States that were first hit with the virus, including California, New York, and Washington, acted quickly with executive orders that initially mobilized resources and implemented physical and social distancing practices. As more cases were discovered, these executive orders quickly morphed into “shelter at home” or “stay-at-home” orders. The stay-at-home orders varied, but in most states the orders amounted to a shutdown of the state, closing schools and nonessential businesses, encouraging or requiring telework, and requiring healthcare practitioners to cancel elective procedures.³³ Residents were ordered to stay home, often indoors, and forgo gatherings larger than ten people;³⁴ many businesses and facilities that remained open were ordered to operate at a drastically reduced percentage of occupancy, with CDC-recommended distancing, masking, and sanitation protocols.³⁵

California became the first state to issue a stay-at-home order, doing so on March 19, 2020. Two pages long, the svelte executive order amended the previous declaration of emergency to “order all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors,” as defined by the federal government.³⁶ Other states quickly followed with orders that included language unique to state concerns. New Jersey,³⁷ for example, wrote that “[i]ndividuals who have to travel . . . should only use public transportation only if they have no other feasible choice.”³⁸ Several states included religious services in their definition of “essential services,” including Texas, which defined essential services to include everything on The Department of Homeland Security’s list, “plus religious services conducted in churches, congregations, and houses of worship.”³⁹ Alabama included religious services as essential, and specified the conditions under which they could occur.⁴⁰ Most states specified that outdoor “recreational activities” (exercising, walking animals, etc.) were allowed so long as the proper distance was maintained.⁴¹

These stay-at-home orders were largely targeted at limiting the spread of Covid-19, protecting the supply chain, increasing hospital capacity, and limiting the economic costs of a widespread pandemic.⁴² Given the ability of asymptomatic individuals to transmit the disease, and that particularly early on into the virus the nation was experiencing severe personal protective equipment (“PPE”) shortages in health settings, stay-at-home orders provided a stop-gap measure as states rushed to prepare field hospitals, procure PPE, implement policies that could decrease transmission, and hopefully allow science to catch up to Covid-19’s rapid spread.⁴³ Originally, stay-at-home orders were typically for a period of thirty days, although some states’ orders were shorter—Georgia’s, for example, was originally drafted to last ten days⁴⁴—and most states ending up extending these orders.⁴⁵

II. Legal Cases Arising out of Stay-At Home Orders

Though necessary, challenges to the orders were almost immediate. Most states have seen some civil protests to the prolonged stay-at-home orders. In addition, individuals, businesses, and even lawmakers and political officials have filed suit in state or district court, challenging provisions of the stay-at-home orders, resulting in consideration by the Supreme Court at least twice, and making headlines in other states, including Michigan, California, and Wisconsin.⁴⁶ Cases have challenged curfews;⁴⁷ closures to nonessential businesses,⁴⁸ including marijuana stores,⁴⁹ gyms,⁵⁰ gun stores and shooting ranges,⁵¹ entertainment venues,⁵² and cosmetologists;⁵³ changes to voting procedures;⁵⁴ whether Covid-19 constitutes a public health emergency;⁵⁵ and challenges to limits on gatherings.⁵⁶ In addition, cases have included general challenges to the constitutional soundness of executive orders.⁵⁷

The question quickly became: Would Jacobson v. Massachusetts hold up to modern times? The majority of cases—spanning various individual liberty interests, as well as business and economic interests—apply Jacobson to find governors are acting within their powers, even as their orders cut off access to income and commerce, group worship, abortion, and other individual rights long held sacred in the United States—reinforcing that such rights are not “wholly without restraint,” as the Supreme Court held over 100 years ago in Jacobson. The expediency of the measures, however, have come under scrutiny as what were originally anticipated as stop-gap measures have become a longer-term temporary way of living. As time and science aid in better tailoring restrictions, restrictions will need to be curtailed, or they will likely not withstand courts’ scrutiny.

A. Challenges to Governors’ Authority from Other State Actors

Notably, a number of suits challenging governors’ orders have come from other state actors, including state legislatures, elected officials, and even, in one case, the Lieutenant Governor. These challenges—both legislative and legal—have proven unsuccessful. In Wolf v. Scarnati,⁵⁸ for example, the Pennsylvania State Supreme Court found that the legislature could not terminate the Governor’s disaster proclamation “by passing a concurrent resolution, without presenting that resolution to the Governor for his approval or veto.”⁵⁹ The court “express[ed] no opinion as to whether the Governor and the General Assembly . . . . presents a superior approach.”⁶⁰ It did reinforce, however, as it had in a prior case,⁶¹ that the Governor’s emergency “proclamation had the ‘full force of law.’”⁶²

Other courts have been careful to likewise delineate the contours of their decisions. In Legislature v. Palm,⁶³ for example, the Wisconsin Supreme Court made national headlines for a decision that was seen as “strik[ing] down the governor’s stay-at-home order.”⁶⁴ However, very early into its decision, the court writes: “This case is not about Governor Tony Evers’ Emergency Order or the powers of the Governor.”⁶⁵ Rather, the court’s decision was about the state health official’s extension of the order—again, a decision that rested on administrative grounds.⁶⁶ Cases that are still developing, such as the Georgia Governor’s suit against the Atlanta mayor for requiring Atlanta residents to wear masks,⁶⁷ and, similarly, the threat of suit from North Carolina’s Lieutenant Governor for the Governor’s order requiring masks,⁶⁸ may help further articulate the lines of gubernatorial power as balanced against other state actors.

B. Individual Liberty Challenges to Governors’ Orders

More numerous are cases from private actors (individuals, businesses, etc.) that challenge specific provisions of governors’ orders. Many of these suits touch on core constitutional rights—the right to travel, to worship, and to access abortion. Yet for the most part, courts (including the Supreme Court) have deferred to state orders. These decisions show the latitude governors will be granted in the acute phase of response to a novel pathogen.

1. Quarantine Orders Affecting Travel

In Carmichael v. Ige,⁶⁹ the District Court used Jacobson’s deferential standard to uphold the governor of Hawaii’s fourteen-day quarantine measures for residents and nonresidents who travelled to Hawaii and, eventually, interisland.⁷⁰ In denying the request for injunctive relief, the court found that the quarantine measures “bear a real or substantial relation to public health,”⁷¹ and that such governor proclamations were not a “‘palpable invasion’ of Plaintiffs’ Fifth and Fourteenth Amendment rights,” whether under “traditional levels of scrutiny or Jacobson’s highly deferential standard.”⁷² Similarly, the court wrote, “Although the right to travel within the United States is constitutionally protected, that does not mean that a temporary quarantine cannot be instituted in certain areas when evidence shows that unlimited travel there would directly and materially interfere with the safety and welfare of that area.”⁷³

2. Orders Affecting Access to Abortion

The Fifth Circuit Court of Appeals, in In re Abbott,⁷⁴ used Jacobson to reach a similarly deferential conclusion on a different area of individual liberties. In a petition for writ of mandamus, the court found that the governor of Texas’s March 22, 2020 Executive Order was subject to Jacobson’s standard.⁷⁵ The three-week order, which required that all licensed healthcare providers and facilities “postpone all surgeries and procedures that are not immediately medically necessary to correct a serious medical condition of, or to preserve the life of, a patient who without immediate performance . . . would be at risk for serious adverse medical consequences or death,”⁷⁶ included healthcare facilities providing pre-viability abortions. Finding that closing such facilities bore a “real and substantial relation” to Texas’s Covid-19 crisis by decreasing the hospital capacity or PPE supply,⁷⁷ the court went on to write that the order “merely postpones non-essential abortions,” and therefore was not “an outright ban on pre-viability abortions.”⁷⁸ The order, then, was not “beyond question, in palpable conflict with the Constitution.”⁷⁹ The Eighth Circuit used similar reasoning to find an Arizona Department of Health suspension of surgical procedures was likewise not an unconstitutional infringement.⁸⁰

But the Sixth and Eleventh Circuits decided similar cases differently. In Robinson v. Attorney General,⁸¹ the Eleventh Circuit denied a stay of a preliminary injunction against Alabama, upholding the district court’s finding that Alabama’s medical restrictions limiting abortions “are undue under Casey, and that they impinge the right to an abortion in a ‘plain, palpable’ fashion under Jacobson.”⁸² The Sixth Circuit, in Adams & Boyle, P.C. v. Slatery,⁸³ affirmed a preliminary injunction⁸⁴ against Tennessee’s temporary ban on abortions, finding that it was “incompatible not only with Jacobson, but also with American constitutional law writ large.”⁸⁵ Furthermore, the court distinguished the case from In re Abbott, which upheld the temporary ban on abortions, by noting that the Texas order contained “an important caveat permitting doctors to perform procedures that, in their clinical judgment” would not adversely affect hospital capacity or access to PPE.⁸⁶ The Tennessee order contained no such caveat, allowing procedures only if the woman faced “serious adverse health consequences,” a “narrow provision” that did not “save [the executive order’s] constitutionality.”⁸⁷

3. Orders Affecting the Right to Gather and Worship

By far the most numerous cases contesting governors’ orders are those that limit the size of group gatherings—particularly in houses of worship. This may have been in part due to the outbreak’s timing. The Covid-19 response required states to begin closing down just as many Americans were about to celebrate Easter, considered the most holy day in the Christian calendar.⁸⁸ Churches filed suit to be allowed to hold services; some church leaders made headlines, declaring they would hold services in defiance of governors’ orders.⁸⁹

The outcome of these cases have varied, largely depending on the way the governors’ orders are written. A handful of lower courts found that state orders prohibiting religious gatherings that met the safety requirements of similar entities did constitute a palpable infringement of constitutional rights.⁹⁰ Much longer, however, is the list of courts that have upheld orders which limit gatherings, even when those limits may impact religious gatherings.⁹¹

The Seventh Circuit, for example, in Elim Romanian Pentecostal Church v. Pritzker,⁹² upheld the governor’s restrictions, noting that there was no unconstitutional discrimination in the governor’s ban on gatherings of groups larger than ten:

The vital question therefore is whether Executive Order 2020-32 discriminates against religion. Funerals, weddings, and similar activities are subject to the same size limit that applies to worship services. Illinois did not set out to disadvantage religious services compared with secular events. Nor does the order discriminate among faiths.⁹³

In Robert v. Neace,⁹⁴ however, the Sixth Circuit found that Kentucky Governor Andrew Beshear’s order, which it noted as having “four pages of exceptions”⁹⁵ to what constituted a “life-sustaining” entity, did “likely fall on the prohibited side of the line.”⁹⁶ The court noted that while the governor’s orders were likely not “motivated by animus towards people of faith,”⁹⁷ given the number of exceptions to the closures “and the kinds of group activities allowed,” the order was “remove[d] from the safe harbor for generally applicable laws.”⁹⁸ The church would agree to hold services in a manner that met the required standards for other “life-sustaining” businesses. Furthermore, the court wrote:

Risks of contagion turn on social interaction in close quarters; the virus does not care why they are there. So long as that is the case, why do the orders permit people who practice social distancing and good hygiene in one place but not another for similar lengths of time? . . . All in all, the Governor did not customize his orders to the least restrictive way of dealing with the problem at hand.⁹⁹

Additionally, as states continued to work on their Covid-19 response, the death of George Floyd in police custody led to nationwide protests and unrest, further complicating the response and highlighting the difficulty of balancing free speech with public health interests.¹⁰⁰ In many cases, courts noted the disparity between the treatment of protest gatherings and church gatherings: “If officials are now exempting protestors, how can they justify continuing to restrict worshippers? The answer is that they can’t. Government does not have carte blanche, even in a pandemic, to pick and choose which First Amendment rights are ‘open’ and which remain ‘closed.’”¹⁰¹

III. Dissipating Deference: Supreme Court Decisions Indicate the Future Direction of Jacobson Considerations

In addition to the flurry of Jacobson jurisprudence being generated in lower courts, the Supreme Court has considered two separate applications for injunctive relief related to Covid-19.¹⁰² Both petitions involved limits on religious gatherings and both times, the petition was denied, upholding governors’ orders limiting religious gatherings.¹⁰³ Of course, as has been pointed out, “opinions accompanying the denial of injunctive relief pending appeal ‘cannot have the same effect as decisions on the merits.’”¹⁰⁴ But the cases are significant because they suggest that lower courts are providing the proper analysis under Jacobson, and indicate the direction of analysis future cases may face as the pandemic continues and governors seek to reopen states while protecting residents.

The first, South Bay United Pentecostal Church v. Newsom,¹⁰⁵ was denied May 29, 2020, in a 5–4 decision. There, a church sought to enjoin enforcement of Governor Gavin Newsom’s order that restricted places of worship from gathering.¹⁰⁶ At the time of the Supreme Court’s consideration, attendance was permitted but limited to twenty-five percent capacity or 100 attendees.¹⁰⁷ In his concurrence denying the petition, Chief Justice John Roberts wrote that “although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment.”¹⁰⁸ “Secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances”¹⁰⁹ were subject to similar or more stringent requirements.¹¹⁰ Furthermore, “the Order exempts or treats more leniently only dissimilar activities.”¹¹¹ Chief Justice Roberts goes on to state that when state officials “‘undertake[ ] to act in areas fraught with medical and scientific uncertainties,’ their latitude ‘must be especially broad.’ Where those broad limits are not exceeded, they should not be subject to second-guessing by an ‘unelected federal judiciary.’”¹¹²

Writing for the dissent, Justice Brett Kavanagh, joined by Justices Clarence Thomas and Neil Gorsuch, reinforced California’s “compelling interest in combating the spread of COVID–19 and protecting . . . its citizens.”¹¹³ But California failed to justify “distinguishing between (i) religious worship services and (ii) the litany of other secular businesses that are not subject to an occupancy cap.”¹¹⁴ Accordingly, writes Justice Kavanagh, California’s order “contravenes the Constitution.”¹¹⁵

But the level of deference granted to a governor’s state action may dissipate over time. In late July, almost two months after denying the South Bay petition, the Supreme Court denied a similar petition for Calvary Chapel Dayton Valley v. Sisolak.¹¹⁶ This time, however, in his ten page dissent, Justice Samuel Alito, joined by Justices Thomas and Kavanaugh, strenuously protested the denial of injunctive relief, pointing to the governor’s order, which allowed casinos to open at fifty percent capacity while still prohibiting houses of worship from gathering at the same occupancy restrictions.¹¹⁷ Alito points out that for Calvary Chapel Dayton Valley, this fifty percent cap would constitute ninety congregants; for a casino, it could still mean thousands of occupants.¹¹⁸ Additionally, the dissent points to the disparity between the governor publicly supporting a protest that violated the State’s fifty person cap on outdoor gatherings, while still prohibiting congregants to gather.¹¹⁹ Alito cites the State’s argument that its decisions should be upheld under Jacobson’s deferential standard.¹²⁰ But, Alito writes,

Even under this test, the directive’s discriminatory treatment would likely fail for the reasons already explained. And in any event, it is a mistake to take language in Jacobson as the last word on what the Constitution allows public officials to do during the COVID-19 pandemic. Language in Jacobson must be read in context, and it is important to keep in mind that Jacobson primarily involved a substantive due process challenge to a local ordinance requiring residents to be vaccinated for small pox. It is a considerable stretch to read the decision as establishing the test to be applied when statewide measures of indefinite duration are challenged under the First Amendment or other provisions not at issue in that case.¹²¹

Both Justices Gorsuch and Kavanaugh wrote additional, separate dissents as well that both point to similar disparities. The mounting strength of dissents in these cases¹²² suggests that the 5–4 outcome in cases upholding Jacobson’s deference to state actions may soon swing the other direction.

IV. Long-Term Impact on Civil Liberties

The plethora of cases since March 2020 underscores the difficulty of protecting constitutional rights while protecting public health and the importance of doing so evenly across the country. Challenges to orders, specifically mask requirements, may provide additional tests to Jacobson’s relevance. State legislatures may impose limits on gubernatorial orders as well as states reconsider the impact governors’ powers can have in a longer-term emergency. For example, both Virginia and Alabama have introduced legislation that would impose a time limit on a governor’s emergency declaration without approval from the state’s general assembly. A Virginia Joint Resolution states that an executive order related to an emergency “that restricts, limits, or prohibits otherwise lawful action by a private business, nonprofit entity, or individual shall not exceed a period of forty-five days” without approval by the General Assembly.¹²³ A similar, but failed, Senate Bill in Alabama attempted to limit Governor-declared emergencies to fourteen days, and to only allow extension “by joint resolution of the Legislature.”¹²⁴

Ongoing challenges to individual liberty interests will likely prove more successful if governors do not more narrowly tailor orders as the pandemic continues. For now, however, even after over 100 years—under modern Supreme Court scrutiny and unprecedented state-level actions—Jacobson has held and has served as a reminder to a public that has forgotten, or never knew, the limits of their own freedom in the face of an acute, immediate public health threat.

Category: Print Issues

Safe at Home? Legal and Liberty Concerns with Stay-At-Home Orders

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