- Squatter sues homeowners from prison, gets default judgment [Eric Ross, KOAA; Colorado Springs. Colo.]
- “Judge Thomas Hardiman on the history of judicial independence” [Cato Audio of last year’s Constitution Day lecture]
- There really needs to be an off ramp at Child Protective Services by which an investigation of a family that proves unfounded can just end instead of cycling through more and more investigation [Lenore Skenazy]
- Authors, journalists, photojournalists challenge AB5 in court: “California’s Anti-Freelancer Law Violates the First Amendment” [Trevor Burrus on Cato amicus brief in American Society of Journalists et al. v. Becerra, Ninth Circuit]
- California’s legislature has long been itching to gut or repeal Proposition 109 (1996), in which voters banned race and sex preferences. Now they’re going to try to bring back the old identity-spoils system [Gail Heriot, RealClearPolitics]
- “Identifying #NeverNeeded Regulation after COVID-19” [Cato Daily Podcast with Caleb Brown and Matthew D. Mitchell, Mercatus Center]
- The proper extent of quarantine and isolation as measures against epidemics was the subject of regular debate through the Nineteenth Century. This article gives a good account of how those debates played out in New York and Massachusetts [Susan Wade Peabody, Journal of Infectious Diseases, February 1909]
- “Without legal immunity, colleges … that reopen will no doubt face suits from those who get sick.” [Jennifer Braceras] More: Why Mitch Daniels, president of Purdue, is determined to get the university reopened this fall for in-person instruction [Washington Post]
- Litigation ahead over question of how big a refund colleges may owe students of unused dormitory space [Jessica Goodman, AZFamily.com, Michael Abramowicz and Caprice Roberts] Law firm files 18 class actions against colleges and universities demanding refund on grounds that online academic program not as good as the in-person instruction it replaced [Susan Adams, Forbes]
- “New Jersey Attorney General: Employers May Have to Restrict Employees’ Saying ‘Chinese Virus'” [Eugene Volokh] First Amendment protects the right to voice irresponsible and wrong opinions, and judge should toss pressure group’s attempt to silence Fox News commentary on virus [Malathi Nayak, Bloomberg]
- “Local governments in Nevada suspend public-sector union contracts in response to COVID-19” [Jerrick Adams, Center Square]
- When does the coronavirus pandemic excuse performance of a commercial contract? [Eugene Volokh first and second posts]
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.
“An innovative coronavirus testing program in the Seattle area — promoted by the billionaire Bill Gates and local public health officials as a way of conducting wider surveillance on the invisible spread of the virus — has been ordered by the federal government to stop its work pending additional reviews….’Please discontinue patient testing and return of diagnostic results to patients until proper authorization is obtained,’ the F.D.A. wrote in a memo.”
Appalling. Now will you believe what libertarians have been trying to tell you about the Food and Drug Administration? [Mike Baker, New York Times; earlier on FDA and COVID-19 testing here]
“One potential problem: wearing a mask in public may also be a crime…. In fact, many states and localities have similar anti-disguise laws, most of which date back to the Reconstruction era and were aimed at suppressing the Ku Klux Klan.” Kevin Underhill’s explainer of the law of mask bans includes the sidelight question of “false whiskers” [Lowering the Bar]
- Liability exposures are a major roadblock to reopening. Over to you, state and federal lawmakers [Jim Copland, City Journal] “Can reopened businesses use waivers to fight coronavirus lawsuits? Probably not” [Daniel Fisher, Legal Newsline]
- The structural reasons America is so good at turning out cans of soda and so awful at turning out COVID-19 tests [Paul Romer] Links we haven’t rounded up previously on the testing debacle: Alec Stapp, The Dispatch; Michael D. Shear, Abby Goodnough, Sheila Kaplan, Sheri Fink, Katie Thomas and Noah Weiland, New York Times; Shawn Boburg, Robert O’Harrow Jr., Neena Satija and Amy Goldstein, Washington Post; Jeffrey Singer; Caroline Chen, Marshall Allen and Lexi Churchill, ProPublica; Paul Detrick, Jacob Sullum; earlier here, etc.;
- Loosening a 1967 federal law so as to ease intrastate sales of meat between ranchers and local grocers could help both consumers and embattled livestock raisers while better respecting the Constitution’s scheme of federal authority [Baylen Linnekin; related here from 2010 on the tendency of food regulation to be pushed by a combination of consumer/safety groups and large producers, for whom the regulation often serves to improve their position as against smaller market players]
- “Even though the state government asked thousands of people to come to New York from out of state to help fight coronavirus, they will have to pay New York state taxes, even on income they might make from their home states that they’re paid while in New York.” [Corey Crockett and James Ford, WPIX]
- Forced retroactive coverage of business interruption risks never underwritten or paid for “could bankrupt the insurance industry,” per one defense lawyer [Alison Frankel, earlier here and here; Nancy Adams and Kaitlyn Leonard, WLF]
- Bilingual national identity is not a suicide pact: “Canada recently relaxed bilingual labeling requirements for some cleaning products coming from the United States.” [Inu Manak]
Among the wackier claims put forth in four of the lawsuits challenging governor’s virus shutdown orders is that the measures violate the U.S. Constitution by depriving states of a republican form of government. That’s a rhetorical gesture more than a serious legal argument, both because the orders haven’t deprived states of such a form of government, and because the federal courts in any event long ago made clear that the so-called Guarantee Clause can’t be sued over — it’s a political question and not “justiciable.” I’ve got a new piece at The Bulwark looking at the history of attempts to breathe life into the Guarantee Clause and what might happen if courts ever decided to entertain lawsuits under it.
- Case reporting, contact tracing, location monitoring: “Disease Surveillance and the Fourth Amendment” [Alan Z. Rozenshtein, Lawfare]
- Unanimous Supreme Court spanks Ninth Circuit for its attempt to use immigration-law case to bring up (admittedly interesting) issue that neither party had presented and was not necessary to resolve the dispute [Ilya Shapiro and Michael Collins on U.S. v. Sineneng-Smith: “Neither Party Is Right, But the Ninth Circuit Is Wrong”]
- Judge Thomas Hardiman of the Third Circuit on the history of judicial independence [Cato audio]
- “While many scholars have studied Erie v. Tompkins, few have studied the facts of the case, and none have questioned Tompkins’s account. This article argues that Tompkins and his witnesses were not telling the truth.” [Brian L. Frye, SSRN 2018]
- Can procedurally valid constitutional amendments themselves be unconstitutional? [Mike Rappaport and followup post, both 2018]
- And now for something completely different: “Ayn Rand, Gary Lawson, and the Supreme Court” [Balkinization symposium last summer on Ken Kersch book Conservatives and the Constitution, more; unrelated but also about Lawson]
“States ordered nursing homes to take COVID-19 residents. Thousands died. How it happened.” We previously linked to earlier reporting on this remarkable set of decisions, with a focus on New York and New Jersey, but this report adds much detail as well as updating the ghastly toll. “Strikingly, Italian officials issued similar orders for nursing homes to admit coronavirus patients on March 8, a move under investigation by authorities for contributing to potentially preventable deaths, according to the Associated Press.” [David Robinson, Stacey Barchenger and Kelly Powers, USA Today Network, and Jo Ciavaglia, Bucks County Courier Times (Pennsylvania)]
More: Jim Geraghty rounds up many states’ problematic policies.