The Next Surges Are Here: What Can American Governments Lawfully Do In Response to the Ongoing COVID-19 Pandemic?

Abstract

On August 7, a federal judge concluded his rejection of challenges to COVID-19 restrictions with these words: "This collective crisis ought to have imposed a sense of collective humility given the long shadow cast by all that we do not know about the disease. We might hope that Socratic wisdom is making a comeback." Yet a week later, new lawsuits were brought in Minnesota and California by churches refusing to comply with distancing requirements. More litigation has been brought, arriving at the U.S. Supreme Court, with some reversals of certain State restrictions. As of January 24, 2021, more than 400,000 Americans have died and 25 million have been infected by COVID-19—while States are increasingly divided about what restrictions (if any) to impose or enforce against businesses, houses of worship, and people.

This pandemic is not the first, nor will it be the last, pandemic or epidemic to ravage the world-- but "Those who cannot remember the past, are condemned to repeat it." And in January 2021, many already seem to be forgetting the measures utilized last winter and spring to reduce death and infection rates.

This is the first article to examine comprehensively our current pandemic in the context of previous ones, and in terms of important medical, policy and legal trends and precedent. It also reviews current litigation decisions, primarily at the federal level. Additionally, the essay analyzes what the federal government could legally mandate to contain the spread of COVID-19, but more importantly focuses upon what a State Governor can do now or in anticipation of the new and ongoing surges of COVID-cases and deaths—in the context of current case law focused upon such primary constitutional rights or liberties as the right to travel, the dormant commerce clause, the Tenth Amendment, and the right to gather or go to businesses (including, for churches, the Free Exercise Clause) without restrictions. Whether the wearing of face coverings can be mandated is also addressed. The article concludes that a properly motivated federal, state or local executive officer or board can best protect their residents’ health through properly-drafted regulations or executive orders, drawing on legal and medical precedent that will survive court challenges.

Keywords: COVID-19, right to travel, dormant commerce clause, Free Exercise Clause, pandemic, Spanish Flu

JEL Classification: K32