State government actions in response to the coronavirus (COVID-19) pandemic—from closing businesses and limiting travel to lifting those restrictions—raise potential constitutional questions. Federal lawsuits challenging the constitutionality of state orders are cropping up around the nation. These challenges are distinct from any remedies that might exist under state law (including state constitutions) or federal statutes (including preemption). This LawFlash provides an overview of the states’ powers to respond to public health emergencies and describes the constitutional questions those powers implicate.
For centuries, quarantines have been used to respond to the spread of communicable disease. And so, since before the founding of the United States, the power to quarantine has been viewed as the archetypal police power that states reserved when ratifying the US Constitution.
Because quarantine laws concern the health and safety of residents, and because a state’s power is at its peak during an emergency, emergency quarantine orders ordinarily have not been found to infringe individual constitutional rights. During the 19th and early 20th centuries, federal courts were highly deferential to state quarantines, which were applied to both the sick and the healthy, and largely upheld state quarantines against the few constitutional challenges levied against them. The US Supreme Court held that a state may implement emergency measures that restrict constitutional rights so long as the measures have at least some “real or substantial relation” to the public health crisis and are not “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”
Over the last century, quarantine laws were rarely used, and therefore rarely tested in court. Yet over that same time, federal constitutional law has expanded and changed in substantial ways. For instance, certain individual liberties have become more vigorously protected, while economic liberties have become less protected. As a result, current challenges to states’ COVID-19 responses present a number of unsettled issues.
Claims Based on Fundamental Liberties: Numerous individuals have argued that shelter-in-place orders violate their First Amendment rights of free exercise of religion, speech, and association. A few lawsuits assert that executive orders closing certain firearm-related businesses, like gun stores, violate the Second Amendment. Federal courts are applying varying levels of scrutiny ranging from Jacobson to strict scrutiny—that is, they are evaluating whether the state’s incursion on the fundamental liberty is narrowly tailored to a compelling state interest—but finding that even under the strict scrutiny test, these challenges fail.
Claims Based on Procedural Rights and Equal Treatment: Individuals and businesses have brought due process and equal protection challenges under the Fourteenth Amendment. These claims are similar to claims based on fundamental liberties, but they focus on how a state’s quarantine responses distinguish among activities. For example, even if a state can constitutionally bar public worship under the First Amendment during a quarantine, it is a different question whether a state can bar public worship while simultaneously allowing people to congregate at grocery stores or public parks. When a fundamental right or liberty interest is implicated, courts will likely review these disparate-treatment challenges under the strict scrutiny test. Otherwise, courts typically use the rational basis test, the most deferential standard of review that will uphold a law so long as there is a rational relationship between the shutdown order and some legitimate governmental purpose. Some economic interests are specially protected from discrimination; for instance, the Commerce Clause prohibits state laws that discriminate against interstate commerce in favor of local interests or that impose too great a burden on interstate commerce. When the Commerce Clause is implicated in this way, strict scrutiny applies.
Claims Seeking Constitutionally Guaranteed Remedies: Finally, some individuals and businesses have brought claims, not challenging quarantine laws directly, but seeking constitutionally guaranteed remedies—like just compensation under the Takings Clause, or protection of private agreements under the Contracts Clause. Under the Takings Clause, private property cannot be taken for public use without just compensation. These claims will be reviewed under the fact-intensive regulatory taking analysis, which examines several factors, including the economic impact of the regulation and the extent to which the regulation has interfered with distinct investment-backed expectations. The Contracts Clause prohibits states from passing laws that substantially impair contractual relationships. To determine whether an impairment is substantial, courts consider the extent to which the law interferes with a party’s reasonable expectations, undermines the contractual bargain, and prevents the party from safeguarding or reinstating his rights.
Many of the lawsuits filed against state governors and officials in response to COVID-19 are still in their early stages, and courts have yet to rule. While the first wave of cases filed focused on claims involving individual liberty interests, the second wave seems to be trending away from personal claims toward business claims. This is important to watch, and we anticipate more businesses will begin to file lawsuits under the Takings, Contracts, and Commerce Clauses.
For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. We also have launched a resource page to help keep you on top of developments as they unfold. If you would like to receive a daily digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts.
William R. Peterson
 See, e.g., Compagnie Francaise de Navigation a Vapeur v. State Board of Health, 186 U.S. 380, 393 (1902) (upholding Louisiana’s right to quarantine passengers on a vessel—even where all passengers were healthy—against a Fourteenth Amendment challenge).
 Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905).