Constitutional Laboratories: Some Reflections on COVID-19 Litigation in Arizona

Abstract

In federal court case after federal court case, plaintiffs challenging COVID-19 restrictions lost. The reason is obvious. Under modern equal protection and substantive due process doctrine, states receive enormous deference when restricting rights that federal courts do not consider to be fundamental. State cases that raised issues of state law fared, on the whole, better. Reflecting on my own litigation in Arizona, this Essay makes the case that in several areas of law—nondelegation, judicial review of executive acts, state “equal privileges or immunities” clauses, and the obligations of contract—state constitutional law provides more fruitful grounds for future challenges for at least some kinds of assertions of emergency authority, and that the independent development of state constitutional law in these areas should be encouraged. Of course, not all government measures will be unconstitutional under state law, and many will be necessary and desirable. But some assertions of authority might be unconstitutional under state law even if constitutional under modern federal doctrine.

Keywords: COVID-19, coronavirus, rational basis, privileges or immunities, nondelegation, emergency powers, municipal corporations, judicial review, contracts clause, discrimination, executive power, executive orders