Remember the Past: What Can Governors Do When the 2nd COVID-19 Surge Comes?

16 Pages Posted: 19 May 2020 Last revised: 17 Jun 2020

See all articles by Jeff Thaler

Jeff Thaler

University of Maine - School of Law

Date Written: June 16, 2020


June 16th, and the has more than 119,000 deaths and 2.2 million confirmed cases from COVID-19—while more and more lawsuits are being filed challenging governmental restrictions on gathering or travel, and 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. 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 June 1 focused upon such primary constitutional rights or liberties as the right to travel, the dormant commerce clause, and the right to gather (including, for churches, the Free Exercise Clause). The essay 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, Remember the Past: What Can Governors Do When the 2nd COVID-19 Surge Comes? (June 16, 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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