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.

Reopen lawsuits, and their mixed outcomes is a post from Overlawyered - Chronicling the high cost of our legal system

The required, yet also somehow forbidden, front-door temperature check is a post from Overlawyered - Chronicling the high cost of our legal system

“…shall guarantee to every State in this Union a Republican Form of Government” is a post from Overlawyered - Chronicling the high cost of our legal system

After the immediate threat to life has passed, both we and the courts must be vigilant that constitutional rights now bent spring back upright, and that governments promptly and fully relinquish whatever emergency powers they have flexed. But we also need to face the facts about this country’s actual constitutional law, which from the Revolution to the present day has been united in treating legitimate government power as at its zenith during a “hot” emergency of deadly contagion.

It can be tempting to spin tales of constitutional law as we might like it to have been, and pass that off as the actual state of the law. We who believe in law as law should especially resist that temptation.

P.S. More sources on quarantine and related public health powers: Mark Miller, Pacific Legal Foundation; Al Tompkins, Poynter; Rebecca Katz et al., Journal of Public Health Management Practice 2018.

“Are the Lockdown Orders Constitutional?” is a post from Overlawyered - Chronicling the high cost of our legal system

In addition, the piece I wrote a month ago for the Wall Street Journal on federalism and the pandemic response is now out from behind that newspaper’s paywall in a Cato reprint.

More on whether shutdown orders are a taking; WSJ federalism reprint ungated is a post from Overlawyered - Chronicling the high cost of our legal system

One durable problem, in some states at least, is state unclaimed-property law. Thinking of tossing a gift card into a drawer and never using it, as a kind of tip to an enterprise that’s brought you happiness over the years? Depending on what state you live in, you might actually be tipping your state tax authorities, and laying only future legal hassle on the merchant you wanted to help. I’ve covered state unclaimed-property law both here and at Cato. (More on its intersection with gift cards: Michael Waters, The Atlantic last fall.)

Delaware’s ambitious claims over unclaimed property have resulted in pitched courtroom battles for years, only a portion of which has been over gift cards specifically. Last year a jury awarded the state more than $7 million in a triple-damage unused gift card proceeding against just one national retailer, Overstock.com.

The Blue Hen State had to rewrite its unclaimed property law after a 2016 ruling by a federal court found its existing law a violation of due process and concluded that Delaware authorities had “engaged in a game of ‘gotcha’ that shocks the conscience.” The replacement law, which explicitly lays out a claim to gift cards rather than relying on older and more uncertain language, doesn’t have a long track record yet.

Small business could use some advance funding. Too bad gift cards are a legal mess. is a post from Overlawyered - Chronicling the high cost of our legal system

FDA authorizes an at-home COVID-19 test — but some states still ban it is a post from Overlawyered - Chronicling the high cost of our legal system

I conclude: of the many good reasons for deregulation, one “is that it bolsters resilience when systems [like banks] are asked to cope with complex new perils.”

From TSA to small business lending, emergency regs often make the next emergency worse is a post from Overlawyered - Chronicling the high cost of our legal system

You can watch yesterday’s Cato online panel on COVID-19 and the Constitution with Ilya Shapiro, Trevor Burrus, and me.

Also at Cato, my latest Pandemics and Power notebook is on NYC Mayor Bill de Blasio’s scheme to draft health care professionals nationwide, feds’ seizures of medical equipment, any excuse to ban vaping, and a scene from the life of a great vaccinologist. And while we’re at it, here’s Deirdre McCloskey with some relevant thoughts: “Coronavirus must not rob us of our liberties forever.”

A panel on the Constitution, and a second pandemic notebook installment is a post from Overlawyered - Chronicling the high cost of our legal system

Whatever your previous thinking on absentee and vote-by-mail procedures, minimizing the need for in-person voting is now the need of the hour. Every vote cast by mail is one that doesn’t add to waiting lines (already a headache even before social distancing) and the need for interaction at sign-in tables.

Election law in a pandemic is a post from Overlawyered - Chronicling the high cost of our legal system