With a few notable exceptions, the courts have not been inclined to scrutinize sweeping COVID-19 control measures that entail unprecedented restrictions on our liberties and livelihoods.
The Pennsylvania Supreme Court took a similar stance when it rejected a lawsuit challenging aspects of that state's lockdown last month.
Once Gov. Tom Wolf decided certain businesses had to close because they were not "Life-sustaining," the court noted, they could ask him to reconsider, albeit through a process that critics described as "Utterly ineffective."
Even as the Supreme Court approved mandatory vaccination in that case, it recognized that judicial intervention might be appropriate in different circumstances.
The police power "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," Justice John Marshall Harlan noted.
"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."
Law professors Lindsay Wiley and Stephen Vladeck, who think most official responses to COVID-19 could withstand judicial scrutiny, argue that courts nevertheless should not abdicate their responsibility to protect civil liberties, especially during an emergency when politicians are inclined to overlook them.
https://reason.com/2020/05/06/when-are-covid-19-control-measures-arbitrary-and-unreasonable/
The Pennsylvania Supreme Court took a similar stance when it rejected a lawsuit challenging aspects of that state's lockdown last month.
Once Gov. Tom Wolf decided certain businesses had to close because they were not "Life-sustaining," the court noted, they could ask him to reconsider, albeit through a process that critics described as "Utterly ineffective."
Even as the Supreme Court approved mandatory vaccination in that case, it recognized that judicial intervention might be appropriate in different circumstances.
The police power "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," Justice John Marshall Harlan noted.
"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."
Law professors Lindsay Wiley and Stephen Vladeck, who think most official responses to COVID-19 could withstand judicial scrutiny, argue that courts nevertheless should not abdicate their responsibility to protect civil liberties, especially during an emergency when politicians are inclined to overlook them.
https://reason.com/2020/05/06/when-are-covid-19-control-measures-arbitrary-and-unreasonable/
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