On September 14th, Judge Strickman issued his ruling in the case of Butler County v. Wolf in the U.S. District Court for the Western District of Pennsylvania. Strickman was appointed to the federal bench by Donald Trump and confirmed by the Senate just a year ago.
In this case, the plaintiffs were three groups of people in Pennsylvania--some politicians, some county governments, and some businesspeople--who challenged Governor Tom Wolf's orders for a COVID-19 lockdown as being unconstitutional in violating the First and Fourteenth Amendments. Strickman ruled for the plaintiffs in striking down the governor's lockdown as unconstitutional.
On September 23, Wolf filed his appeal of this case, which now moves to the U.S. District Court of Appeals for the Third District. This would be a good case to reach the U.S. Supreme Court.
On March 16, Trump recommended a lockdown of American economic and social life by announcing "The President's Coronavirus Guidelines for America." The first line of those guidelines was "Listen to and follow the directions of your State and Local Authorities." It was understood that neither the President nor the national government generally had the constitutional power to impose the lockdown that Trump was recommending. It was believed that the state governors had that power.
And, indeed, three days later--March 19--the governors of California, New York, and Pennsylvania issued executive orders closing down many sectors of their state economies. Governor Wolf announced the closure in Pennsylvania of all "non-life-sustaining" businesses. Four days later--March 23--Governor Wolf issued a "stay-at-home" order that in effect put most of the citizens of Pennsylvania under house arrest. Eventually, 43 of the state governors issued some version of these lockdown orders.
On May 7, the plaintiffs in this case filed their suit against Governor Wolf and Pennsylvania Secretary of Health Rachel Levine as having acted unconstitutionally in three parts of their lockdown orders--restrictions on the size of gatherings, the order closing "non-life-sustaining" businesses, and the ordering of Pennsylvanians to stay-at-home. They made three claims. First, that the restrictions on gatherings violated the right of assembly protected by the First Amendment. Second, that the business closure and stay-at-home orders violated the Due Process clause of the Fourteenth Amendment by depriving people of their life, liberty, or property without due process of law. Third, that the business closure distinction between "life-sustaining" and "non-life-sustaining" businesses violated the Equal Protection Clause of the Fourteenth Amendment. In his final opinion of September 14, Judge Strickman ruled in favor of all three claims made by the plaintiffs as to the unconstitutionality of Governor Wolf's lockdown in Pennsylvania.
Beginning with the first state lockdowns in March, there has been an ongoing debate in the federal courts and among some law professors about the constitutionality of the lockdowns. Since Strickman's thinking was influenced by that debate, I will briefly review some of the arguments in that debate before turning to Strickman's opinion.
MUST THE COURTS ALLOW SUSPENSION OF CONSTITUTIONAL RIGHTS IN AN EMERGENCY?
Strickman quotes from an article by Lindsay Wiley and Stephen Vladeck, which was one of the first law review articles on the legal debate over the lockdowns (see pp. 16-17 of Strickman's opinion). Wiley and Vladeck say that there is one central question in this debate: "Should constitutional constraints on government action be suspended in times of emergency (because emergencies are 'extraconstitutional'), or do constitutional doctrines forged in calmer times adequately accommodate exigent circumstances?" (Wiley and Vladeck 2020, 180).
They defend the latter position--that the courts can and should protect constitutional rights even in times of emergency. In making their case, a lot depends on their interpretation of the Supreme Court's decision in Jacobson v. Massachusetts, 197 U.S. 11 (1905), which has been widely cited by federal judges upholding the suspension of constitutional rights in the pandemic emergency.
In 1902, Massachusetts was only one of 11 states that had compulsory vaccination laws. In response to a smallpox epidemic in Cambridge, Massachusetts, the city's Board of Health adopted a regulation making smallpox vaccination mandatory for adults over 21 years old, with a fine for those who refused. Henny Jacobson had had a mandatory vaccination as a child in Sweden. He had had such a bad reaction that he developed a life-long fear of vaccinations. When he refused the vaccination in Cambridge, he was fined. He argued that this compulsory vaccination violated his constitutional rights to life and liberty. The U.S. Supreme Court ruled, however, that this was a proper exercise of the police power of the state and local governments in protecting the public health. The justices claimed that the state legislature was the only body with the power to hear expert testimony about whether vaccination was effective or harmful, and to decide whether "the majority of the medical profession" or the "anti-vaccinationists" were in the right.
If there ever is a vaccine for the COVID-19 coronavirus, we might expect some public health leaders to recommend compulsory vaccination. And if so, we are likely to hear a lot about the Jacobson decision.
Justice Harlan, writing for the majority in Jacobson, noted that the defendant insisted that a compulsory vaccination law invaded his constitutional right to liberty, which is protected from infringement by state government by the 14th Amendment, because such a law was "hostile to the inherent right of every freeman to care for his own body and health in such a way as to him seems best." Harlan rejected this claim in the most often quoted passage of his opinion:
". . . the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle with recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. . . ." (197 U.S. 11, 26)
Harlan then quoted from Crowley v. Christensen, 137 U. S. 86, 89: "The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is then liberty regulated by law."
Thus, "real liberty for all" must be restrained to prevent injury to others, and so the court could uphold the compulsory vaccination law of Massachusetts as a proper restraint on liberty to prevent the injury on the community that would be inflicted by unvaccinated people in the emergency of a smallpox epidemic.
But to conclude from this that the Jacobson decision means that constitutional rights are suspended in times of emergency, and that judges cannot question the constitutionality of the government's exercise of emergency powers in setting aside individual rights, ignores Harlan's repeated insistence that that is not the case.
Justice Harlan made it clear that the court would allow an exercise of the police power to control a small pox epidemic only as long as it was "justified by the necessities of the case."
"We say necessities of the case, because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all, might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons." 197 U.S. 11, 28.
Moreover, "if a statute purporting to have been enacted to protect the public health, the public morals or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution." Id. at 31.
At the end of his opinion, Harlan chose to reiterate this point:
"Before closing this opinion we deem it appropriate, in order to prevent misapprehension as to our views, to observe--perhaps to repeat a thought already sufficiently expressed, namely--that the police power of a State, whether exercised by the legislature, or by a local body acting under its authority, may be exerted in such circumstances or by regulations so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression." Id. at 38.
There are standards here for when the courts should strike down as unconstitutional the suspension of individual rights in times of emergency. The courts have a duty to review a state's exercise of their police powers in an emergency (1) when such actions are taken in "an arbitrary, unreasonable manner," (2) when the actions have "no real or substantial relation" to protecting the public health, public morals, or public safety, or (3) when the actions are "beyond all question, a plain, palpable invasion of rights secured by the fundamental law." In those circumstances, the courts must interfere in these state actions "to prevent wrong and oppression."
From his reading of Harlan's opinion in Jacobson, Judge Stickman concludes that "under the plain language of Jacobson, a public health measure may violate the Constitution," and therefore, "the Constitution applies even in times of emergency" (pp. 13, 21).
Strickman observes that in Pennsylvania, the COVID-19 lockdown is based on executive decrees by the Governor that infringe on constitutional rights, and the state legislature has not exercised any effective constraint on the Governor's actions. Consequently, the judiciary remains the only constitutional actor that can enforce the constitutional system of checks and balances to secure constitutional rights against the arbitrary absolute rule of one person:
"There is no question that our founders abhorred the concept of one-person rule. They decried government by fiat. Absent a robust system of checks and balances, the guarantees of liberty set forth in the Constitution are just ink on parchment. There is no question that a global pandemic poses serious challenges for governments and for all Americans. But the response4 to a pandemic (or any emergency) cannot be permitted to undermine our system of constitutional liberties or the system of checks and balances protecting those liberties. Here, Defendants are statutorily permitted to act with little, if any, meaningful input form the legislature. For the judiciary to apply an overly deferential standard would remove the only meaningful check on the exercise of power" (pp. 20-21).
The only alternative to this would be to say that in any emergency like a pandemic, the constitutional system of limited government is suspended. Stickman rejects this because he believes that even in times of emergency the Constitution can and must be enforced. If that is so, then the question is whether the Governor's lockdown orders really do violate the Constitution--particularly, the First and Fourteenth Amendments.
The First Amendment protects the freedom of speech and "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Some of the plaintiffs in the Butler County case had claimed that Governor Wolf's imposed limitations on "events and gatherings" of 25 persons for indoor gatherings and 250 persons for outdoor gatherings violated the right of public assembly. Specifically, the political plaintiffs complained that these limits on gatherings unconstitutionally violated their right to hold campaign rallies and other campaign events.
Strickman ruled that the Governor's orders for gathering limits showed at least two kinds of inconsistency that rendered those orders unconstitutional. First, the Governor said that he would allow large protest marches for the "Black Lives Matter" movement; and the Governor himself marched in one of those protests, although these marches violated his COVID-19 orders, which did not specify any exemptions for such protests. If the people of Pennsylvania have a constitutional right to march in a massive protest of the killing of George Floyd, why don't they also have a constitutional right to attend a large campaign rally?
The second inconsistency, Strickman noted, was "the imposition of a cap on the number of people that may gather for political, social, cultural, educational and other expressive gatherings, while permitting a larger number for commercial gatherings limited only by a percentage of the occupancy capacity of the facility," which was "not narrowly tailored and does not pass constitutional muster" (pp. 31-32).
Strickman also agrees with the argument of the plaintiffs that the Governor's orders closing "non-life sustaining" businesses and requiring Pennsylvanians to stay-at-home violated the Fourteenth Amendment. This Amendment declares: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The stay-at-home order violates the right to freedom of movement and travel. The business shutdown order violates the freedom to work for a living and the right to property. It also violates "equal protection of the laws" because some of the business activity that was prohibited was essentially the same as some of the business activity that was permitted.
Although the stay-at-home order was ultimately suspended, Strickman observes that this suspension is not a rescission, because the Governor may reinstate the stay-at-home requirements at any time. The currently applicable orders have no ending date, applying "until further notice."
That the Governor's lockdown was overbroad, unnecessary, and beyond the established authority of government in response to a pandemic is indicated by the fact that nothing like this had ever been done in American history--or even in world history. Moreover, there is no evidence that anyone engaged in any rational calculations of the costs and benefits of such an unprecedented lockdown to determine that such drastic means were rationally proportioned to the end of protecting public health.
Throughout history, governments have used quarantines to control pandemics, but Strickman notes that the lockdown of an entire population is not a quarantine. In the worst pandemic of American history--the Spanish Flu pandemic of 1918-1920, there were quarantines and some restrictions on large gatherings of people, but there were no lockdowns--no orders that everyone stay in the homes and no orders closing all "non-essential" businesses.
Remarkably, Strickman points out, prior to 2020, there were no guidelines from the CDC recommending lockdowns in response to a pandemic. In the 2017 CDC guidelines for a "Very High Severity" pandemic (comparable to the Spanish Flu), the guidelines provide only that "CDC recommends voluntary home isolation of ill persons," and "CDC might recommend voluntary home quarantine of exposed household members in areas where novel influenza circulates" (p. 44). Notice the word voluntary. And notice that nothing like statewide lockdowns is recommended here.
This raises the question that I have asked (here): When and how did the experts decide that a COVID-19 lockdown was justified? Here is Strickman's answer:
"The fact is that the lockdowns imposed across the United States in early 2020 in response to the COVID-19 pandemic are unprecedented in the history of our Commonwealth and our Country. They have never been used in response to any other disease in our history. There were not recommendations made by the CDC. They were unheard of by the people of this nation until just this year. It appears as though the imposition of lockdowns in Wuhan and other areas of China--a nation unconstrained by concern for civil liberties and constitutional norms--started a domino effect where one country, and state, after another imposed draconian and hitherto untried measures on their citizens. The lockdowns are, therefore, truly unprecedented from a legal perspective" (p. 44).
Now, of course, as Strickman concedes, the fact that some governmental action is new does not make it unconstitutional. But still the traditional requirements for "balancing" and "proportionality" demand some proof that the novel means are rationally proportioned to the end. Strickman suggests: "Broad population=wide lockdowns are such a dramatic inversion of the concept of liberty in a free society as to be nearly presumptively unconstitutional unless the government can truly demonstrate that they burden no more liberty than is reasonably necessary to achieve an important end. The draconian nature of a lockdown may rend this a high bar, indeed" (pp. 48-49).
I would suggest that if governmentally mandated lockdowns to slow or end a pandemic have never been attempted prior to this year, then there's no previous historical experience to provide the evidence to demonstrate the reasonable necessity for such measures to protect the public health. But now that we have had 7-9 months of experience with lockdowns by state governments in the United States and by national governments around the world, we should be able to analyze the recent historical data to see if the evidence supports lockdowns as rationally proportioned means for mitigating the harm of the pandemic.
For example, one should be able to compare the pandemic death rates for different states and different nations and see if those states and nations with the most severe lockdowns have had the lowest death rates. But in fact, some recent studies (here and here) have found little evidence that differences in lockdown policies have had any effect on the death rates from the pandemic. Christian Bjornskov, professor of economics at Aarhus University in Sweden, looks at the association between the intensity of lockdowns and coronavirus deaths in 24 European countries, and he concludes: "more severe lockdown policies have not been associated with lower mortality. In other words, the lockdowns have not worked as intended." If that is so, then we can say that lockdowns are not "reasonably necessary to achieve an important end."
Moreover, there is some evidence indicating that when the pandemic broke out, people spontaneously took action to avoid infection by reducing their social and economic activity, so that they engaged in a voluntary lockdown that did not require a governmentally mandated lockdown. Sweden did this by recommending that its citizens engage in a largely voluntary lockdown without governmental coercion. Pennsylvania and other states could have adopted this strategy, which does not violate any constitutional rights.
If Pennsylvania had done this, there would have been no need for the Governor to distinguish "life-sustaining" businesses that could remain open as opposed to "non-life sustaining" businesses that had to close. In a voluntary lockdown, people decide this spontaneously by how they engage in free-market activity--deciding what is necessary to their life and what is not in a pandemic.
Stickman points out that the Governor's orders never gave any definition of "life-sustaining" versus "non-life-sustaining" business. The Governor did make up a list of "life-sustaining" businesses, but he changed this list 10 times!
At the beginning of the lockdown, the Governor set up a waiver process by which businesses could file requests to have their businesses added to the list of "life-sustaining" businesses. But within a few weeks, the group of people assigned to review these waiver requests were so overwhelmed by the number of requests that the whole waiver process was ended.
The arbitrariness and capriciousness of the rules of lockdown led to gross violations of the "equal protection" standard of the 14th Amendment. So, for example, small stores selling appliances and furniture were forced to close; but Lowes, Home Depot, and Walmart were free to sell exactly the same goods. And thus, Strickman complains, "the largest retailers remained open to attract large crowds," even though the lockdown was supposed to prohibit large gathering where the virus could spread!
For all of these reasons, it seems to me, Judge Strickman has made a good case for overturning the Governors' COVID-19 lockdown orders as unconstitutional.