Why Not Just Sue?

The case against bringing a case to challenge the executive orders of the COVID-19 pandemic.

Over the past several weeks, several people have asked me why we can’t just file a lawsuit to get the Governor’s executive orders nullified, and go back to our normal lives. The executive orders are clearly unconstitutional, they argue, so why aren’t we doing this? The short answer is, to put it bluntly, that the courts disagree. For over 110 years, the United States Supreme Court and lower federal and state courts have repeatedly ruled that, when there is a compelling government interest (and protecting the public health is usually recognized to be one), the government can abrogate constitutional rights, so long as it is by the least restrictive means. There does not have to be a declared state of emergency for the government to do this. So even in ordinary times, this would be a very tough case to win. During a declared national and statewide public health emergency, it would be nearly impossible (I never say impossible, because courts are strange places, and every so often you get a unicorn decision – but even then, those decisions are almost always overturned on appeal).

The problem began with our favorite [insert sarcasm here] case, Jacobson v. Massachusetts, 197 U.S. 11 (1905). This single 1905 U.S. Supreme Court case – and its progeny – have wreaked utter havoc on individual liberties in the United States, at least during a declared public health crisis. The Second Circuit (the federal circuit which has jurisdiction over Connecticut) reaffirmed this fairly recently in Phillips v City of New York, 775 F.3d 538 (2015), a case issued on my 37th birthday, like a gift from someone who really, really doesn’t like me. You can see what I mean by this snippet:

Plaintiffs argue that New York’s mandatory vaccination requirement violates substantive due process. This argument is foreclosed by the Supreme Court’s decision in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). In that case, the plaintiff challenged Massachusetts’s compulsory vaccination law under the Fourteenth Amendment. The Supreme Court held that mandatory vaccination was within the State’s police power. Id. at 25–27; see Zucht v. King, 260 U.S. 174, 176 (1922) (“Jacobson ․ settled that it is within the police power of a state to provide for compulsory vaccination.”). The Court rejected the claim that the individual liberty guaranteed by the Constitution overcame the State’s judgment that mandatory vaccination was in the interest of the population as a whole. Jacobson, 197 U.S. at 38. Plaintiffs argue that a growing body of scientific evidence demonstrates that vaccines cause more harm to society than good, but as Jacobson made clear, that is a determination for the legislature, not the individual objectors. See id. at 37–38.5 Plaintiffs’ substantive due process challenge to the mandatory vaccination regime is therefore no more compelling than Jacobson’s was more than a century ago. See Caviezel v. Great Neck Pub. Schs., 500 F. App’x 16, 19 (2d Cir.2012) (summary order) (rejecting substantive due process challenge to vaccination mandate based on Jacobson ).

New York could constitutionally require that all children be vaccinated in order to attend public school. New York law goes beyond what the Constitution requires by allowing an exemption for parents with genuine and sincere religious beliefs. Because the State could bar Phillips’s and Mendoza-Vaca’s children from school altogether, a fortiori, the State’s more limited exclusion during an outbreak of a vaccine-preventable disease is clearly constitutional. (Emphasis added.)

That last line is the one that would really drive the stake through the heart of any case challenging the executive orders issued during the present COVID-19 pandemic. During an outbreak, the Second Circuit has held, the state can close the schools to a certain class of persons, i.e. unvaccinated children. Let me write that again, this time in all caps. THE STATE CAN CLOSE THE SCHOOLS TO A CERTAIN CLASS OF PERSONS DURING AN OUTBREAK. This selective exclusion, despite the obvious equal protection problem it presents, is legal in our state according to the highest federal court in our circuit. If it is legal to exclude just one group of persons from schools during an outbreak, then I don’t see how a court would rule that it is illegal to exclude all persons equally from schools (and from places that do not have any state constitutional right tied to them, such as restaurants and movie theaters).

I realize that the issue here is not (yet) compulsory vaccination, and that COVID-19 is not a “vaccine-preventable disease” (neither is the measles, by the way, but I’ll leave that for another post). That last point actually makes the executive orders more stalwart, because if we don’t have a vaccine to “prevent” the illness, then the only option to achieve the government’s goal of stopping the spread is to shelter in place. And the same legal principles and precedent that govern the mandatory vaccination and religious exemption cases would undoubtedly also be applied to any lawsuit challenging the current executive orders. If the state has determined that “stay at home” – or even quarantine – orders are the best and most effective means of protecting public health during this declared public health emergency, the courts will say they can do it. I am nearly 100% confident in this outcome. For that reason, it is my opinion that the only hope to end a shutdown would be to get enough legislators to put pressure on the Governor to relax or rescind these orders. During a public health emergency, the Governor and President have vast and nearly unilateral power to abrogate constitutional rights, as repeatedly affirmed by the courts for over a century of jurisprudence. I could be wrong, of course, as I’m just a guy with a keyboard who happens to have a law degree. But all I’m saying is that I wouldn’t spend my money or time on legal challenges to executive orders while the pandemic persists in full force in Connecticut. Were these orders to remain in place even after the public health emergency declarations are rescinded, that would be an entirely different story. If that is the case, trust me, I’ll be the first in line at the courthouse!

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