In light of the threat that the new coronavirus presents to people in the U.S., are stay-at-home orders and mandatory business closures constitutional? Proponents of the view that these orders are unquestionably constitutional point to court cases broadly authorizing governmental actions to contain disease. And state governments do have broad authority under their police powers to respond to pandemic threats. Judges deferentially review legislative and executive actions in response to pandemics threats. Nonetheless, even the most broadly worded decisions do not provide state governments with a carte blanche, as these very same cases also note.
As Felix Frankfurter put it, “Constitutionality is not a fixed quality; in crucial cases it resolves itself into a judgment upon facts.” This is reflected in the constitutional requirement that exercise of the police power, even in the face of a pandemic, must nonetheless be “reasonable.” To be sure, reasonability is interpreted by courts in a manner highly deferential to legislative and executive actions. Arguments over public policy are made more appropriately to legislators and executives than to courts. Nonetheless, even under deferential rationality review, courts can provide a “sober second look” at the possibility of policy overreach by government officials in the grip of pandemic panic. That is one of the purposes, after all, for buffering judges from the full force of political pressure faced by legislators and executives.
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