The Next Surge is Coming: What Can Governors Constitutionally Do to Prevent More COVID-19 Deaths and Cases This Fall?

25 Pages Posted: 19 May 2020 Last revised: 17 Aug 2020

See all articles by Jeff Thaler

Jeff Thaler

University of Maine - School of Law

Date Written: August 14, 2020


On August 7, a federal judge concluded his rejection of challenges to COVID 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 are brought in Minnesota and California by churches refusing to comply with distancing requirements. August 14th, fall is approaching, and the has more than 170,000 deaths and over 5.3 million confirmed cases from COVID-19—while more States are allowing businesses and people to operate as they were pre-COVID. This pandemic is not the first, nor will it be the last, pandemic or epidemic to ravage the world-- "Those who cannot remember the past, are condemned to repeat it."

This is the first essay to assess in detail our current pandemic in the context of previous ones, in terms of important medical, policy and legal trends and precedent. It is important to understand how past pandemic history should inform 2020 litigation and governmental responses, so that the mistakes of the past can be avoided. 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 likely new surges of COVID-cases and deaths—in the context of case law as of August 14th focused upon such primary constitutional rights or liberties as the right to travel, the dormant commerce clause, and the right to gather or go to businesses (including, for churches, the Free Exercise Clause). Whether the wearing of face coverings can be mandated is also addressed. The article concludes that a State can best protect its 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

Suggested Citation

Thaler, Jeffrey, The Next Surge is Coming: What Can Governors Constitutionally Do to Prevent More COVID-19 Deaths and Cases This Fall? (August 14, 2020). Available at SSRN: or

Jeffrey Thaler (Contact Author)

University of Maine - School of Law ( email )

246 Deering Avenue
Portland, ME 04102
United States


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