A Historical Review of the State Police Powers and Their Relevance to the COVID-19 Pandemic of 2020
11 J. Nat'l Sec. L. & Pol'y 83 (2020)
24 Pages Posted: 2 Mar 2021
At the time this article was written, in June 2020, the United States was five months into the 2020 COVID-19 pandemic. The United States Supreme Court, in a divided decision, has turned away a challenge to state authority to impose general public health restrictions that did not exempt religious institutions. While most state and federal courts have also rejected challenges to public health orders, an unprecedented number of courts have sided with the challengers and substituted the courts’ judgment on public health safety measures for that of the state or local public authorities. At this point in time, support for public health restrictions to slow the spread of the virus tends to follow the existing ideological divide in the country, reflecting either the President’s skepticism of science and expert opinion and downplaying the risk of the pandemic, or accepting the need for dramatic shared sacrifice in the face of grave danger.
This article is a historical look at the judicial review of public health orders and statutes. Courts have almost always deferred to the judgment of public health authorities or legislatures in public health cases. In only two cases has the Supreme Court found such actions unconstitutional. In both, the Court found that the proffered public health justification was pretextual, with a significant racial/ethnic bias.
But while the judicial divide over the public health response to COVID-19 is unprecedented, the public controversy is not. Public health actions have always been controversial in the United States. There have always been vaccine resisters. Businesses resist anything that interferes with their operations. Individuals resist restrictions on personal behavior, whether that was wearing masks in 1918-1919 or being isolated for tuberculosis. Public officials also have sometimes failed to act because of public opposition. Public resistance to disease control measures during the 1918-1919 flu pandemic, for example, led to a second wave of cases and a dramatic increase in deaths. And political opposition to public health actions greatly exacerbated the impact of the HIV/AIDS epidemic in the United States.
Keywords: public health, COVID-19, police power, quarantine, vaccination, Jacobson, plague, religion, HIV, AIDS, public health reporting, travel restrictions
JEL Classification: I12, K32, Z18, H12, H77
Suggested Citation: Suggested Citation