James R. Steiner-Dillon (University of Dayton School of Law) & Elisabeth Ryan (Harvard University – Harvard Extension School) have posted Jacobson 2.0: Police Power in the Time of COVID-19 (Albany Law Review, Forthcoming) on SSRN. Here is the abstract:
The COVID-19 pandemic has become a legal, as well as a public health, crisis. For the first time in generations, state and municipal governments have imposed sweeping constraints upon Americans’ daily activities for the purpose of mitigating a public health emergency. These unprecedented restrictions provoked a wave of constitutional challenges that have revealed the antiquated doctrinal foundations of states’ police power in the area of public health. It has been over a century since the Supreme Court, in Jacobson v. Massachusetts, articulated a broadly deferential approach to constitutional review of state orders issued in response to a public health emergency. The constitutional order has changed since Jacobson was decided; many provisions of the Bill of Rights have been incorporated against the states, and constitutional doctrine has evolved a deeper regard for the rights of privacy and bodily autonomy. The Jacobson doctrine must be updated to incorporate contemporary constitutional norms.
This Article surveys the recent cases evaluating constitutional challenges to states’ COVID-19 orders, finding substantial variation in courts’ efforts to reconcile Jacobson with the subsequent 115 years of constitutional development. It describes three fundamental approaches to applying Jacobson that courts in the COVID-19 era have taken, and then offers a new doctrinal model—“Jacobson 2.0”—by which to evaluate the scope of state police power during a public health crisis. The Jacobson 2.0 model preserves Jacobson’s fundamental insight that courts should grant states a measure of deference and discretion in their efforts to mitigate a public health emergency that would not apply in ordinary times, while explicitly preserving a meaningful role for judicial review in preventing pretextual or disproportionate abridgement of constitutional rights and liberties. Only by updating the Jacobson doctrine to incorporate contemporary constitutional norms can the constitutional law of public health effectively resolve the tension between individual rights and communal health presented in these cases.
Timely & recommended.