COVID Restrictions and the Law

The State’s Authority

From the unprecedented COVID-19  global pandemic, legal precedents are emerging that affect people, businesses and organizations impacted by the pandemic and the pandemic response.  The role of the state – especially executives at state and local levels (Mayors, Governors) – to impose COVID restrictions aimed at mitigating public health risks has become a legal issue of great importance.

Overbearing and Unreasonable COVID Restrictions 

Challenges to overbearing Covid restrictions have been made in nearly every state. Recently, in New Orleans, a local catering and event company and its owner brought suit against the Mayor to enjoin enforcement of her restrictions claiming they were unreasonable and were putting him out of business.  

At the center of this complaint was whether Mayors have the authority to impose hard capacity limits on events with no regard to occupancy limits, and if so for how long, by claiming a health crisis. 

In other cases, businesses, bars, churches, and even local candidates running for office have all challenged the COVID restrictions placed on gatherings and events. While the right to earn a living is often characterized by courts as a lesser protected right, the right to assemble is arguably a fundamental Constitutional right that deserves heightened review.

In the  New Orleans filing, the plaintiff cited several actions taken by the Mayor, including:

  • Imposing local COVID restrictions that did not align with the state and were arbitrary and unreasonable, a substantive due process violation
  • Violating equal protection under the law, by allowing similarly situated businesses to resume operations, but excluding the plaintiffs’ type of business 
  • Imposing local restrictions that were not logically aligned with the published infection rates reported in New Orleans

Local Laws vs. Constitutional Rights?

There is no dispute that Governors and the Mayors have the right to institute laws and restrictions in times of emergency, but how long does that last?  How long may they tread on protected Constitutional rights under the cover of an exigency? These are the issues the courts are grappling with at this time.

This exigency or emergency doctrine was first recognized during a smallpox outbreak in 1905, in a case called Jacobson v. Massachusetts involving  mandatory vaccines.  The 100 plus year old Jacobson decision has been widely cited as precedent upholding current government  orders throughout this pandemic. 

However some members of the United States Supreme Court have not embraced Jacobson as a towering legal  precedent as evidenced by recent rulings in two First Amendment / freedom of religion cases that arose over concerns that the application of emergency rules can hinder constitutional rights during a long-term pandemic.

COVID Restrictions New Orleans Case

In the New Orleans case, the local heightened restrictions imposed by the mayor, which changed frequently and were almost always much greater than the State’s COVID restrictions despite the city’s lower infection rates, prevented the plaintiffs from conducting business at a profit.  With the constant changes, plaintiffs’ customers were not able to predict or plan private events, further damaging the business. Customers went elsewhere for their events.

Even when the New Orleans restrictions were eased for bars, restaurants, sporting events, and  tattoo parlors, and those businesses had permitted customer levels  based on a percentage of total occupancy, rigid hard caps remained in place for other gatherings. 

Plaintiffs contended such disparate treatment violated equal protection standards. Thus far Governors and Mayors have been winning most of these legal challenges over small businesses in the lower and appellate courts, but there’s some hope on the horizon from the United States Supreme Court as seen in a few recent fundamental rights cases.

Supreme Court Case

In Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, the United States Supreme Court sided with the plaintiff, agreeing that hard cap restrictions imposing strict limits on how many could attend religious services were unfair and could lead to irreparable injury to the plaintiff’s operations. 

The Supreme Court granted an injunction preventing such laws from having effect, finding them unconstitutional. While this decision doesn’t bind a Mayor or Governor from putting  restrictions on lesser protected rights (the right to earn a living for example), it can certainly be logically inferred that such actions may not pass muster with the Supreme Court. 

Perhaps the Supreme Court will take up one of the many Covid-19 business cases in the appellate courts now. Until then much is uncertain.