Reopen lawsuits, and their mixed outcomes

Lawsuits have been filed in many states challenging governors’ and mayors’ public health orders arising from the COVID-19 outbreak. I’m in the Frederick News-Post with a guest opinion piece on a judge’s rejection of the (unusually weak) Reopen suit in Maryland. Excerpts:

In some other states, challengers have won rulings striking down at least some portions of state stay-home orders. But this suit’s claims failed all down the line, and here’s why….

In Wisconsin, Oregon, and Ohio, challengers were able to convince judges that governors overstepped the authority granted under state emergency laws, which may require, for example, legislative say-so for an emergency order’s extension. But Maryland grants its governor broader power than many other states, one good reason being that ours is not a year-round legislature. The General Assembly has been adjourned for weeks and is not going to reconvene in Annapolis every 30 days — in the middle of a pandemic! — to give thumbs up or down on each Hogan order. Nor should it have to. The judge found Hogan had not overstepped Maryland law….

In some states, challengers have successfully argued that governors’ orders were too restrictive toward churches. Those claims failed here too.

Under the relevant standard, articulated by the late Justice Antonin Scalia in a 1990 Supreme Court opinion, neutral and general laws that burden religion do not violate the U.S. Constitution so long as 1) they are not improperly motivated by a wish to restrict religion, and 2) they do not arbitrarily restrict religious activity when genuinely similar non-religious activity is permitted. This court, like other federal courts, rejected the argument that if stores are to stay open to sell plywood or soft drinks, all other gatherings must be permitted as well. As the judge pointed out, the federal government’s own guidelines designate sale of food and cleaning supplies as essential. And shop-and-leave arrangements can be rationally distinguished from gatherings whose whole point is to congregate closely for a lengthy period. (Religious gatherings have been an important source of outbreaks both in the U.S. and abroad.)

Some other perspectives on Reopen litigation: Bonnie Kristian/The Week quoting me, Ilya Shapiro, Jacob Sullum, Larry Salzman/PLF; Lawfare resources on state emergency authorities and quarantine/isolation laws; NCSL on state law authority.


  • The lockdown orders are illegal as to one group of people–those who have recovered,

    Additionally, let’s take Pritzker’s order—his own family violated it. They weren’t punished–thus NO ONE can be punished for the violation. (Being the family member of the governor isn’t a rational basis upon which to demand compliance.). Lori Lightfoot’s violation of her own order makes the order illegal.,

    • >The lockdown orders are illegal as to one group of people–those who have recovered,

      That’s not the way the courts see it.

      >Additionally, let’s take Pritzker’s order—his own family violated it. They weren’t punished–thus NO ONE can be punished for the violation. (Being the family member of the governor isn’t a rational basis upon which to demand compliance.). Lori Lightfoot’s violation of her own order makes the order illegal.

      That’s not the way the courts see it either. You keep making things up that you think *ought* to be the law, and proclaiming them to be such. Please, readers, don’t anyone take these assertions to be a statement of good law.

      • Ah, the courts have to say it before it’s unlawful . . . . that’s part of the problem. You rail against lawless government agencies, but those agencies play hardball so their nonsense never gets tested.

        Under the EPC, a lot of government action is subject to what is known as rational basis scrutiny. Often, the issue becomes one of government classifications. With respect to Pritzker’s family, the question becomes whether being the governor’s family or not is a rational basis upon which to base government action. The answer is clearly and unequivocally no. (That’s not remotely debatable.) Same with Lori Lightfoot. So then the question becomes whether the orders are to be stricken as a result. A harder question, of course, but if you think about it, how in the world can these orders be enforced once those who have made it break it? How in the world can courts give their imprimatur to any punishments when those making the orders have flouted them. We simply do not have that type of society. Or do we?

        As for those who have recovered, the issue is similarly crystal clear. There is no evidence upon which any finding can be made that they are a danger to themselves or others. Thus, their liberties cannot, under any stretch, be restricted by the government, and especially for months and months. The only possible argument is that the government would have a tough time sorting them out–hmmm, sounds like a “not my problem.”

        There have been reports (and it seems pretty likely) that some portions of the orders were made for political reasons. For example, the golfing bans, which were beyond ridiculous, were likely imposed because politicians didn’t like the optics of the upper classes enjoying themselves on the golf course. Then you have silliness like in Pennsylvania where a “Peeps” factory was allowed to be open, but gun stores were not allowed to be open–and this after governments were releasing criminals. Then you have the abortion issue.

        All in all, I’d say yeah, these things are illegal under any rational understanding of what the law is. .

        • At some point, after the courts have ruled a dozen times that something is lawful that you think should be unlawful or vice versa, you have two basic options:

          1) You can say, “I think the state of the law is mistaken, even if it is of long standing, and here are my reasons why they should change it.”

          2) You can come off like the guy who keeps shouting, “I’m making a *citizen’s arrest*” even as the bailiffs lead him down the corridor.

          My own approach, when I think the law is wrong, tends more toward 1).

          • I was talking to a candidate for State Representative yesterday. He asked if I was going to bitch to him about the current situation. I told him no because he hasn’t had anything to do with it. I did ask why he was even running because our Governor is totally ignoring the State Legislature. I also asked if he had any plans to make changes to the existing laws to put restrictions on the power of the Governor during a so called “emergency”. I didn’t get an answer.

          • Interesting that the Wisconsin Supreme Court case largely tracked some reservations I had immediately and that I posted here, namely, the imposition of criminal penalties and the failure to follow the state’s APA. And the Illinois and Ohio decisions seem to have gone my way.

            I also wouldn’t say that these shutdowns are from “long-standing” law. Massachusetts v. Jacobson deals with a mandatory vaccination, not months-long quarantines of healthy people. But I digress.

            As for option 2, well, that really just points up that, at the end of the day, this is all about power.

            Finally, let’s look at the actions of Governor Noem. She felt that she was honoring the constitution with her order. Do you think that people like Governor “I don’t care about the Bill of Rights” Murphy do? Nope. If they can get away with it, they will. I may look like the guy shouting “citizen’s arrest,” but what does he look like?

          • For the future, I suggest State constitutions provide that, 30 days after a Governor proclaims an emergency, a majority of either (both?) house(s?) has the *option* to reconvene the legislature. Statutes could specify how to express that majority, and what sort of remote meeting would be suitable during pandemics.

        • SPO, a fundamental problem with your analysis is “individual agency.” A governor does not control members of her family — even her husband who wants the boat in the water, even her kids. If a GOVERNOR doesn’t follow her own orders, maybe you have something. But a governor’s family members? We are all autonomous actors. Numerous are the politicians’ kids who don’t follow a drug law the politician voted for. But that doesn’t mean the law is null.

          • Rupert, of course, you are correct that they are “independent actors”—the problem in this case is that the Governor himself issued the order and the Governor obviously isn’t enforcing it against his own family. That’s different from voting for a law and your kid not following it.

            I understand, of course, that there are always going to be situations where a law is selectively enforced based on clout. That’s a reality of life. The question is when does that make the law (and in this case, ukase) unable to be enforced. In the case of these ukases, where the governor’s own family blows off the ukase, that, under any rational idea of what law really is, the ukase goes bye-bye.

            Fundamentally, my difference with Mr. Olson is based on the idea of where the realm of law ends and where the realm of raw power begins. I’d say we are safely within the realm of raw power where the governor’s family gets to flout his orders with impunity. Of course, that’s not new for Mr. Pritzker. Check out his illegal $300,000 tax break with Cook County. Of course, when caught, he paid it later. But that doesn’t settle up his tax bills with Illinois or the federal government (the illegal tax break with Cook Country constituted gross income to him). Think anyone at the Illinois Department of Revenue is going to send him an assessment letter? No, I didn’t think so either.