Jacobson 2.0: Police Power in the Time of COVID-19
102 Pages Posted: 1 Nov 2020 Last revised: 6 Feb 2023
Date Written: October 27, 2020
Abstract
The COVID-19 pandemic has become a legal, as well as a public health, crisis. In response to the pandemic, state and municipal governments have imposed unprecedented constraints on Americans’ daily activities. These restrictions provoked a wave of constitutional challenges that have revealed the antiquated doctrinal foundations of states’ police power in the area of public health. It has been over a century since the Supreme Court, in Jacobson v. Massachusetts, articulated a broadly deferential approach to constitutional review of state orders issued in response to a public health emergency. The constitutional order has changed since Jacobson was decided; many provisions of the Bill of Rights have been incorporated against the states, the Court has developed tiers of constitutional scrutiny, and constitutional doctrine has evolved a deeper regard for the rights of privacy and bodily autonomy. The Jacobson doctrine must be updated to incorporate contemporary constitutional norms.
This Article surveys cases evaluating constitutional challenges to states’ COVID-19 orders, finding substantial variation in courts’ efforts to reconcile Jacobson with the subsequent 115 years of constitutional development. It describes three distinct approaches to applying Jacobson that courts in the COVID-19 era have taken, and then offers a new doctrinal model—“Jacobson 2.0”—by which to evaluate the scope of state police power during a public health crisis. The Jacobson 2.0 model preserves Jacobson’s fundamental insight that courts should grant states a measure of deference and discretion in their efforts to mitigate a public health emergency that would not apply in ordinary times, while explicitly preserving a meaningful role for judicial review in preventing pretextual or disproportionate abridgement of constitutional rights and liberties. Only by updating the Jacobson doctrine to incorporate contemporary constitutional norms can the constitutional law of public health effectively resolve the tension between individual rights and communal health presented in these cases.
Keywords: health, constitutional law, pandemic, COVID-19, coronavirus
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