Constitutional Challenges to Public Health Orders in Federal Courts during the COVID-19 Pandemic

34 Pages Posted: 5 Aug 2021

See all articles by Kenny Mok

Kenny Mok

University of Chicago Law School

Eric A. Posner

University of Chicago - Law School

Date Written: August 1, 2021

Abstract

We examine federal judicial cases involving non-religious civil-liberties challenges to COVID-19-related public health orders from the start of the pandemic to June 29, 2021. Consistent with the tradition of judicial deference toward the state during emergencies, we find a high level of success for governments. However, governments did lose in 13.7% of the cases, and in those losses, there is evidence of partisan or ideological influence. Republican-appointed judges were more likely to rule in favor of challengers when they brought claims based on gun rights and property rights, while Democratic-appointed judges were more likely to rule in favor of challengers when they brought claims based on abortion rights. We conclude by arguing that courts should exercise greater deference to public health orders issued during emergencies.

Keywords: COVID-19, judicial review, judicial deference, constitutional rights

Suggested Citation

Mok, Kenny and Posner, Eric A., Constitutional Challenges to Public Health Orders in Federal Courts during the COVID-19 Pandemic (August 1, 2021). Available at SSRN: https://ssrn.com/abstract=3897441 or http://dx.doi.org/10.2139/ssrn.3897441

Kenny Mok

University of Chicago Law School ( email )

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Chicago, IL 60637
United States

Eric A. Posner (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-702-0425 (Phone)
773-702-0730 (Fax)

HOME PAGE: http://www.law.uchicago.edu/faculty/posner-e/

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