Jump to Content Jump to Main Navigation

United States: Legal Response to Covid-19

United States [us]

Lindsay F Wiley, Ruqaiijah Yearby, Andrew Hammond

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 05 December 2021

General editors: Prof. Jeff King; Dr. Octavio Ferraz
Area editors: Prof. Tendayi Achiume; Prof. Alan Bogg; Dr. Natalie Byrom; Prof. Cathryn Costello; Prof. Nicola Countouris; Prof. Colleen Flood; Prof. Eva Pils; Prof. Nico Steytler; Dr. Silvia Suteu; Dr. Bryan Thomas; Dr. Michael Veale; Dr. Pedro A. Villarreal


© The several contributors 2021. Some rights reserved. This is an open access publication, available online and distributed under the terms of the Creative Commons Attribution-NonCommercial 4.0 International (CC BY-NC 4.0), a copy of which is available at https://creativecommons.org/licenses/by-nc/4.0/. Enquiries concerning use outside the scope of the licence terms should be sent to the Rights Department, Oxford University Press.

Preferred Citation: LF Wiley, R Yearby, A Hammond, ‘United States: Legal Response to Covid-19’, in Jeff King and Octávio LM Ferraz et al (eds), The Oxford Compendium of National Legal Responses to Covid-19 (OUP 2021). doi: 10.1093/law-occ19/e24.013.24

Except where the text indicates the contrary, the law is as it stood on: 1 October 2021

As of 1 October 2021, there were more than 43,200,000 reported cases and 700,000 reported deaths due to Covid-19 in the United States (US). People living in low-income households and those who identify as members of racial and ethnic minority groups were more likely to be infected and hospitalized and more likely to die of Covid-19 than their higher income, non-Hispanic white peers. The fragmentary, highly privatized health care system was severely stressed by the pandemic and hospitals were overwhelmed in many areas at the peak of local outbreaks. Mortality rates varied considerably from hospital to hospital, reflecting deep inequities in health care and social resources along geographic, racial, and socioeconomic lines. At the national level, the US has experienced four waves of reported deaths since the first reported infection in January 2020. Each wave at the national level roughly corresponded to a different geographic region being hit especially hard. At the state and local level, epidemic curves varied considerably. The spring 2020 wave of reported deaths, which peaked in April, was driven largely by outbreaks in the Northeast, including New York City, where exponential spread took hold before significant interventions were implemented. States across the US implemented their most stringent interventions during the first wave. Most states eased restrictions as national trends began to improve, but the national trend-line was driven almost exclusively by improving conditions in the highly populous New York City area, meaning that many states eased interventions just as outbreaks were beginning within their own jurisdictions. The summer 2020 wave of reported deaths, which peaked in August, was significantly less severe, driven primarily by outbreaks in Southern and Western states, including Florida, Texas, Arizona, and California. The winter 2021 wave of reported deaths was the largest of the pandemic. It was initially driven by outbreaks in Midwestern states, including Michigan, Minnesota, and Wisconsin, but became widely geographically dispersed by the time it peaked in January 2021. In the spring of 2021, reported cases rose again somewhat at the national level. But as vaccination rates increased rapidly, deaths declined and then plateaued, rather than rising at the national level. In a few states, spread of the more transmissible B.1.1.7. (Alpha) variant outpaced vaccination leading to a new wave of deaths in the spring of 2021. Another national wave of reported deaths began in July 2021, driven by the even more transmissible B.1.617.2 (Delta) variant. Deaths during this fourth wave have been concentrated in areas with low vaccination rates, primarily in the Southern and Midwestern regions. The fourth wave appears to have peaked in September 2021 but much uncertainty remains.

I.  Constitutional Framework

1.  The constitutional framework of the United States (US) is set forth in the US Constitution, which recognizes the sovereignty of state and tribal governments and grants authority over US territories to the federal Government.1 The US federal Government is organized as a constitutional republic. Each of the 50 state governments has its own constitution, executive, legislature, and judiciary. Tribal governments vary in organizational structure. Located within state, territorial, and tribal governments are thousands of local jurisdictions, including county and city governments. The authority of most local jurisdictions is governed by state constitutions and statutes that determine the degree of home rule local governments enjoy. This report will focus on three states as case studies representing different experiences and approaches during the Covid-19 pandemic: New York, California, and Texas. Examples from other states will be provided in cases where they are illustrative of trends.

2.  The federal Government does not have plenary power to regulate persons and property for the protection of the public’s health, safety, or welfare; state governments do. Congress is limited to the exercise of powers enumerated in Article I of the US Constitution. Enumerated federal powers include the power to regulate foreign relations and interstate commerce and the power to levy taxes and spend for the general welfare. Congress also has the power to make laws that are necessary and proper for its exercise of enumerated powers. These powers have been interpreted by the US Supreme Court to be quite far-reaching. Congress has often used its power to tax and spend to achieve indirectly what it cannot achieve directly through regulation. Conditional spending and the power to regulate interstate commerce would have permitted the federal Government to take a more active role in pandemic response, had there been political will for it to do so.2 But the federal Government lacks ‘the power to issue orders directly to the [s]tates’ to implement its initiatives.3

3.  When the federal Government acts pursuant to its constitutionally enumerated powers, it dictates the supreme law of the land. Under the Supremacy Clause of Article VI of the Constitution, constitutionally valid federal interventions may pre-empt state and local authority. Similar provisions in state constitutions and statutes provide that state interventions may pre-empt local authority.

4.  State governments bear primary responsibility for resource allocation and priority setting, but pre-2020 emergency preparedness plans typically assumed that the federal Government would provide substantial financial resources, supply-chain coordination, and scientific guidance.4 Emergency and disaster declarations may free up additional federal financial support and resources for state, local, and tribal governments and their residents, but they do not alter the constitutional limits on federal authority. The federal Government may, however, use its spending power to impose conditions on the receipt of federal funds, subject to constitutional limits on coercion or commandeering of state legislatures or executive officials.

5.  Horizontal division of authority is governed by the separation of powers among executive, legislative, and judiciary branches of government and a system of constitutional checks and balances whereby each branch plays a role in constraining illegitimate exercises of power by the other two. This structure is basically the same at the state level as at the federal level. Many local governments are also governed by some form of separation of powers enshrined in their charters.

6.  Executive branch officials play an increasingly prominent role in the US, with a trend toward expanding executive authority. The directly elected President of the United States is the head of the federal executive branch and appoints cabinet secretaries and other officials to implement and enforce federal law, including through regulations, orders, and guidance. The federal executive branch also plays a critical role in distributing federal financial support and federally-procured supplies. Federal agencies gather and disseminate information and provide guidance on best practices for state, local, tribal, and territorial governments, private institutions, and the general public.

7.  The federal legislature is the US Congress, a bicameral body consisting of the Senate—with two senators representing each of the 50 states, each serving for six-year terms scheduled on a staggered basis—and the House of Representatives–with 435 representatives, allocated to the states on the basis of population size, each serving for two-year terms. Appropriations bills must originate in the House of Representatives. Legislative enactments are subject to presidential veto. Filibuster rules in the Senate that require a 60% vote to bring most measures to a final vote functionally require a super-majority to adopt most kinds of new legislation. Each state has its own legislature and most are bicameral. Unlike the US Congress, many state legislatures are made up of part-time lawmakers who convene only once per year—in some cases, only once every other year. Local government legislative authority is typically exercised by a unicameral council. Legislatures may keep the executive branch in check through impeachment (rarely) or (far more commonly) by repealing or overriding executive actions or judicial decisions (other than constitutional decisions) through legislation.

8.  Courts play an important role in the constitutional system of checks and balances among the branches of government. They may declare legislation or executive action unconstitutional (under state or federal constitutions). In addition, judges have authority to determine that executive action is inconsistent with the legislative authorizations that govern executive officials’ power. Federal, state, local, and tribal courts exercise overlapping jurisdiction. They are limited to hearing cases or controversies brought before the court by litigants—at the federal level this constraint is enshrined in Article III of the US Constitution. Federal court jurisdiction is limited to claims arising under federal law—including the US Constitution—and disputes among litigants from different state, territorial, or tribal jurisdictions. The lower federal courts are organized into 13 circuits. Federal trial courts, called ‘district’ courts, typically adjudicate urgent legal challenges by fielding requests for temporary restraining orders or preliminary injunctions to bar implementation or enforcement of a government action. Trial court decisions to grant these requests may be stayed pending appeal to the intermediate appellate courts, called ‘circuit’ courts. In many cases, the dispute becomes moot before the appellate court reaches a decision. In rare cases, disputes reach the US Supreme Court, which may settle splits among the lower courts. As a result of this structure, rulings in one district or circuit may conflict with those issued in another district or circuit and these splits are not always resolved (see Part IV below). Each state has its own supreme court, which may adjudicate challenges under the state constitution and statutes as well as under the federal constitution and statutes. Because state constitutions—and statutes and state supreme court interpretations of them—vary, state courts may resolve similar legal issues differently.

9.  The Covid-19 pandemic has not prompted any alterations to the federal or state constitutions in the US, but actions taken in response to the pandemic have tested the limits of executive authority and federal intervention permissible under long-standing constitutional arrangements and pre-2020 statutory authorities. Governors, local elected leaders, and health officials have implemented emergency response measures via executive orders that side-step the procedural requirements applicable to rulemaking and legislation (see Part IV). At the federal level, the US Centers for Disease Control and Prevention (CDC) has issued orders that push the boundaries of the communicable disease control powers the federal Government typically exercised prior to 2020 (see Part IV).

II.  Applicable Legal Framework

A.  Constitutional and international law

10.  The US Constitution does not recognize states of emergency in express terms. The only reference to suspension of rights is a provision in Article I stating that ‘the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.’ The US Supreme Court has interpreted this provision to require an act of Congress, which has not occurred since the 19th century.5

11.  In times of emergency, as in routine times, constitutional protection for individual rights is not absolute; it is balanced against collective needs. Rights to freedom of assembly, free exercise of religion, due process, and equal protection of law are guaranteed in the federal and state constitutions and protected by the courts. Judicial review of challenged government action follows standards that emphasize balancing and proportionality, taking into consideration the compelling nature of the government’s interest in controlling the spread of a serious and highly communicable disease while also assessing the suitability of the fit between that end and the government’s selected means. The standard the courts apply varies depending on the nature of the right allegedly infringed by government intervention and the suspect nature of any classifications drawn by the challenged law. These standards—rational basis or ‘mere rationality’ review, intermediate scrutiny, and strict scrutiny—dictate the level of justification the government defendant must provide and the extent to which the courts will tolerate under- or over-inclusivity.

12.  In response to constitutional challenges to Covid-19 restrictions, many US courts adopted a new interpretation of a 1905 US Supreme Court case, functionally transforming it into a judge-made quasi-suspension doctrine.6 In Jacobson v Massachusetts (‘Jacobson’), the Supreme Court upheld a state statute delegating authority to local health boards to make smallpox vaccination compulsory if they deemed it necessary for the protection of public health.7 Applying prevailing standards of the time, the Supreme Court charted a narrow path for courts to strike down police power regulations. Jacobson held that regulations to protect the public’s health, safety, welfare, and morals should be upheld if they are reasonable and not arbitrary. If a regulation effectuates a ‘plain, palpable violation’ of fundamental rights, the courts should strike it down.

13.  In May 2020, a federal court of appeals upholding a de facto state ban on all abortions—as part of a prohibition on elective medical procedures intended to preserve health care capacity—held that Jacobson laid down the definitive standard of judicial review for public health emergency orders. Rather than applying Supreme Court precedents that protect an individual’s right to choose abortion from regulations that impose an undue burden, the court of appeals applied the far more lenient ‘plain, palpable violation’ language from Jacobson. The court of appeals reasoned that if the Supreme Court, when it decided abortion rights cases, had meant for those decisions to apply even in a public health emergency, it would have designated them as exceptions to Jacobson. This interpretation of Jacobson appears to have been rejected by the majority of the US Supreme Court in November 2020,8 but in the intervening months, many state and federal courts found it persuasive and upheld Covid-19 restrictions after determining that ordinary standards of judicial review—which may involve strict or intermediate scrutiny, rather than the ‘mere rationality’ standard Jacobson adopted—must be suspended during a public health emergency.

14.  International conventions—apart from the World Health Organization (WHO) International Health Regulations (IHR)—were generally not considered relevant to public health measures in the US. The IHRs are implemented primarily through state and territorial law in the US, which is supplemented by federal legislation, especially the Public Health Service Act (see Part II.B below).9 The US National Focal Point was established in 2007 in the Office of the Assistance Secretary for Preparedness and Response (ASPR) within the US Department of Health and Human Services (HHS). State, territorial, and local laws and regulations require health care providers to report specified diseases, conditions, and outbreaks to relevant state, territorial, and local agencies. In turn, state and territorial health departments report information about a potential Public Health Emergency of International Concern (PHEIC) to relevant federal agencies. For human diseases, the relevant federal agency is the CDC within HHS. CDC is responsible for analyzing reports using the decision algorithm in Annex 2 of the IHR and for notifying the HHS Secretary’s Operations Center (SOC), as appropriate. The HHS SOC is responsible for reporting a potential PHEIC to the WHO.

15.  Federal authorities did not directly quote standards developed by the WHO in emergency declarations or orders. Orders, guidance, and other materials promulgated by CDC and various state and local authorities sometimes referred to the WHO’s designation of the Covid-19 outbreak as a PHEIC on 30 January 2020. More commonly, US materials referred to the WHO’s ‘declaration’ of Covid-19 as a pandemic, despite the lack of legal significance of the use of the term ‘pandemic’ by the WHO Director General on 11 March 2020. US reliance on the March 2020 statement by the Director General may be attributable to the coincidence of that statement with other developments that marked the point at which the general public began to take the Covid-19 threat seriously.

B.  Statutory provisions

16.  The vast majority of public health directives to respond to Covid-19 in the US have been adopted via executive declarations and orders that rely on pre-pandemic statutory provisions, rather than via new legislation or rulemaking. For the most part, new legislation has focused on the provision of financial supports and legal protections (especially for housing and employment) to enable compliance with public health guidance and to cope with the economic impacts of the pandemic (see Part V below).

17.  Federal and state statutes, and in some cases local ordinances, that pre-date the pandemic provide for various types of emergency and disaster declarations, which typically trigger pre-determined legislative delegations of authority to the executive branch. Delegating authority to elected leaders and health officials facilitates a swift response and nimble adjustments, but emergency declarations do not suspend constitutionally protected rights.

18.  At the federal level, the primary statute for the control of communicable diseases is the Public Health Service Act of 1944, which has been amended periodically by Congress. Section 319 (also known as Section 247d, following codification)10 authorizes the HHS Secretary—the equivalent to a national minister of health—to determine that a public health emergency exists. This determination, which does not require legislative approval, triggers emergency powers delegated by Congress in advance. These include authorities to provide assistance to state, territorial, tribal, and local governments, to suspend or modify certain federal statutory and regulatory requirements that might hinder health care and public health interventions, and to use available funds to address the public health emergency.

19.  Section 361 of the federal Public Health Service Act (which is codified as Section 264)11 authorizes the HHS Secretary, independent of whether a public health emergency determination has been issued, ‘to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.’ Additionally, Section 362 provides that the Secretary ‘shall have the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert such danger, and for such period of time as he may deem necessary for such purpose.’ Finally, Section 365 provides that violation of any regulation prescribed under these authorities is punishable by a fine of no more than $1,000, imprisonment for no more than one year, or both. Acting pursuant to a delegation from the Secretary, the CDC Director relied on these provisions during the Covid-19 pandemic to give border agents the authority to expel migrants at land borders,12 to halt cruise ship operations,13 to impose temporary restrictions on evictions14 and cruise ships,15 and to require face coverings on public transit and in transportation hubs.16 Litigants challenged the CDC’s eviction and cruise orders and the majority of federal courts determined that the orders exceeded the agency’s statutory authority because Section 361 did not authorize such measures in specific terms.17

20.  At the state level, pandemic response authorities are found in public health statutes as well as statutes related to general emergencies, natural disasters, and civil unrest.18 State statutes typically pre-authorize state and local executive actions under specified conditions. Many US jurisdictions adopted sweeping civil defense, emergency, and disaster management statutes during the mid-century period marked by World War II, the Civil Rights movement, and Vietnam War protests.19 These statutes typically include provisions aimed at quelling civil unrest through curfews and restricted zones. Legislatures do not appear to have had communicable disease threats foremost in mind when they authorized these measures, but emergency and disaster statutes were often drafted broadly enough to encompass disease outbreaks as ‘naturally occurring’ disasters or emergencies and some specifically refer to epidemics. Civil defense statutes adopted to secure ‘public safety’ may also be interpreted to encompass public health emergencies. These statutes provide an additional layer of statutory authorization that typically empowers the Governor, following a proper declaration, to adopt measures that are reasonable and necessary to ‘protect life and property or to bring the emergency situation within the affected area under control.’20

21.  On 31 January 2020, the day after CDC reported the first instance of human-to-human transmission within the US, HHS Secretary Alex Azar announced a Public Health Emergency determination,21 under Section 319 of the Public Health Service Act (codified at Section 247d).22 This determination facilitated efforts to support development and distribution of diagnostic tests, therapeutics, and vaccines and allowed other regulatory flexibilities.23 Throughout March 2020, all 50 states and many tribal, territorial, and local governments issued emergency declarations under their own laws.24 On 13 March 2020, President Trump issued emergency declarations under the National Emergencies Act of 197625 and the Stafford Disaster Relief and Emergency Assistance Act of 1988,26 which govern general emergencies and disasters.27 In early April 2020, the President approved major disaster declarations under the Stafford Act for all 50 states, the District of Columbia, and five US territories.28 These declarations authorized federal agencies to provide assistance and support to state, territorial, tribal, and local jurisdictions. The Covid-19 pandemic was the first time that emergency or disaster declarations were issued in all 50 states.

22.  Turning to selected state examples, in New York, one of the first states to detect a sizeable outbreak, the state legislature acted quickly on 2 March 2020 to amend the state’s disaster management statute to clarify that an ‘impending or urgent … disease outbreak’ qualifies as a disaster and to ensure that the Governor would have authority, ‘by executive order, [to] issue any directive during a state disaster emergency’ that is ‘necessary to cope with the disaster’ and that he ‘may provide for procedures reasonably necessary to enforce such a directive.’29 The New York legislature’s action to expand executive powers specifically in response to Covid-19 was rare, but pre-2020 statues already provided similarly broad powers to governors and health officials in most other states.

23.  The Governor of New York relied on his newly expanded statutory authority to declare a statewide ‘disaster emergency’ on 7 March 2020 for an initial period of six months.30 In the days and months that followed, he issued dozens of directives via executive orders relying on his authority to manage the disaster (see Part IV below).

24.  State officials relied far less heavily on New York’s Public Health Law, which provided more limited powers than those afforded by the disaster management statute described above. Section 16 of the state public health statute authorizes the state health commissioner to issue orders ‘for summary action’ for up to 15 days in situations where ‘the commissioner, after investigation, is of the opinion that any person is causing, engaging in or maintaining a condition or activity which in his opinion constitutes danger to the health of the people.’31 This authority does not appear to have proven particularly useful during the Covid-19 pandemic, though the state health commissioner was able to provide recommendations to the Governor, who relied on those recommendations to announce temporary closure of schools, houses of worship, and other large gathering facilities in a one-mile radius in the city of New Rochelle where the first large cluster of cases in the US was detected in early March 2020.32 In addition, in October 2020, the Governor directed the health commissioner to issue Section 16 orders to local governments subjecting them to potential fines if they failed to enforce the state’s emergency public health regulations and the Governor’s executive orders.33 The state legislature amended the public health code in December 2020 to regulate the confidentiality of contact tracing information for individuals with a confirmed or probable diagnosis of Covid-19.34

25.  In California, the Emergency Services Act of 1970 includes the broadest possible delegation of authority to the Governor. During a declared emergency, it grants the Governor ‘the right to exercise within the area designated all police power vested in the state by the Constitution and laws of the State of California in order to effectuate the purposes of [emergency mitigation and protection of health and safety]’ (emphasis added).35 The statute specifically includes ‘epidemic’ within its definition of ‘conditions of disaster or of extreme peril to the safety of persons and property within the state’ that qualify as an emergency for purposes of the Governor’s declaration.36 To exercise his emergency management authority, the Governor may ‘promulgate, issue, and enforce such orders and regulations as he deems necessary.’37 In most states, similar statutes include time limits–eg, the Texas statute provides for renewable one-month declarations (as described below). In contrast, California’s statute does not provide for specific time limits. Rather, it specifies that the Governor should terminate the declaration at ‘the earliest possible date that conditions warrant.’38 Otherwise, the declaration remains in effect unless and until it is terminated by the legislature via a concurrent resolution.

26.  The state public health officer is authorized by the California Health and Safety Code to ‘take measures as are necessary’ to prevent the spread of ‘contagious, infectious, or communicable disease.’39 In addition, local health officers are authorized to ‘take measures as may be necessary to prevent the spread of the disease or occurrence of additional cases.’40

27.  California officials relied on a combination of the emergency management act and provisions in the health and safety code. On 4 March 2020, the California Governor declared a statewide emergency. On 16 March, local government health officers in the greater metropolitan area around San Francisco issued the first shelter-in-place orders in the US (see Part IV.A.1 below). Shortly thereafter, beginning on 19 March, the Governor issued the first state-wide stay-at-home directive via executive order, which in turn directed all residents to heed a series of orders issued by the state public health officer.41

28.  In Texas, the Governor and his public health commissioner relied on emergency management and communicable disease control statutes that pre-dated the pandemic. Under the Texas Disaster Act of 1975, the Texas Government Code authorizes the Governor to declare a state of disaster, which loosens restrictions on the use of available state funds, permits suspension of regulatory statutes and agency rules that would otherwise be barriers to a swift response, and authorizes executive orders to implement response measures.42 The statutory definition of ‘disaster’ in Texas specifically refers to an ‘epidemic’ as an example of an ‘occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural or man-made cause.’43 The emergency management statute provides that ‘[t]he Governor may control ingress and egress to and from a disaster area and the movement of persons and the occupancy of premises in the area.’44 It also specifies that failure to comply with disaster management executive orders is an offense punishable by a fine not to exceed $1,000, confinement in jail for no more than 180 days, or both.45 The Governor relied on these emergency management provisions to declare a state-wide disaster on 13 March 2020,46 which he had renewed each month as of September 2021, as authorized by the statute. In a series of executive orders beginning on 19 March 2020, the Governor relied on the authority triggered by his disaster declarations to implement public health measures.

29.  Communicable disease control provisions in the Texas Health and Safety Code authorize the state public health commissioner to declare a public health disaster subsequent to ‘a declaration by the Governor of a state of disaster; and a determination by the commissioner that there exists an immediate threat from a communicable disease that: (i) poses a high risk of death or serious long-term disability to a large number of people; and (ii) creates a substantial risk of public exposure because of the disease’s high level of contagion or the method by which the disease is transmitted.’47 The Texas public health commissioner relied on these provisions to declare a public health disaster on 19 March 2020,48 which was renewed each month until March 2021, when the Texas Governor issued an executive order terminating all statewide public health measures for Covid-19.49

30.  State preemption of local authority was a hotly contested issue across many parts of the US. After initially instituting uniform state-wide disease control measures, the California Governor—often acting through the state public health officer—pioneered a locally-variable, but state-driven, approach that was eventually followed by governors in several other states. In some instances, the Governor worked with local authorities to urge locally implemented and enforced measures. In other cases, the Governor imposed state restrictions against the preferences of some local officials. In California, measures imposed by the state were generally treated as a floor, rather than a ceiling, with local officials permitted to adopt measures that were more (but not less) aggressive in mitigating Covid-19 risk. The California Health and Safety Code provides that the state public health department ‘may advise all local health authorities, and, when in its judgment the public health is menaced, it shall control and regulate their action.’50

31.  As in several other states,51 the Texas Governor acted repeatedly to preempt local authority to impose ceiling preemption barring public health measures that were more aggressive than state-level responses.52 The Texas communicable disease control statute delegates authority to local health officials to implement communicable disease control measures within their jurisdiction ‘unless specifically preempted’ by state authorities.53 The statute’s preemption provision allows the state health department (who is appointed by the Governor) to amend, revise, or revoke a local health authority’s order ‘if the department finds that the modification is necessary or desirable in the administration of a regional or statewide public health program or policy.’54 The Texas emergency management statute, which the Governor relied on to preempt local authority to impose vaccination and mask requirements, authorizes the Governor to suspend state regulatory statutes via executive order. These provisions are quite commonly found in many state emergency management statutes. As of September 2021, the Governor’s order banning local mask requirements was being challenged by local officials in several jurisdictions and courts were split over whether the Governor’s order exceeded his statutory authority.55

32.  In New York, Governor Andrew Cuomo also repeatedly wrested control from local governments (and especially from New York City Mayor Bill DeBlasio).56 The New York disaster management statute on which the Governor relied does not address preemption in specific terms, but does permit the Governor to suspend or modify any local law if compliance with it would prevent hinder or delay action necessary to cope with the disaster emergency.57

33.  In Texas and several other states, the public health response to Covid-19 relied heavily on notions of personal responsibility, with officials urging—but neither requiring nor financially supporting—responsible behavior. The Texas statute specifically enshrines both governmental and personal responsibility for communicable disease control by stating that ‘[t]he state has a duty to protect the public health’ and that ‘[e]ach person shall act responsibly to prevent and control communicable disease.’58

C.  Executive rule-making powers

34.  Most public health restrictions and mandates have been adopted via executive declarations, proclamations, and orders (referred to as ‘orders’ for shorthand) rather than via rulemaking procedures, as noted in Part II.B above. Orders, declarations, and proclamations did not follow the formal rulemaking procedures typically prescribed by federal and state administrative procedure acts. Officials typically relied on executive orders both for direction-giving—eg, ordering schools and businesses to close and ordering people to stay at home except for approved purposes—and regulation—ie, establishing rules of general application regarding physical distancing, occupancy limits, and sanitation requirements. These orders typically relied on emergency and disaster declarations, as described in Part II.B above. Under most states’ emergency management statutes, the declarations, and therefore the executive orders, were typically subject to renewable time limits set forth in the authorizing statute (typically 30 days, longer in some states, as discussed with respect to the state examples provided in Part II.B above). As a result, most executive orders were adopted for an initial period of 30 days, then renewed—and in many cases, modified—at 30-day intervals. Litigants challenged executive-branch officials’ failure to conform to statutory procedures for rulemaking in court. Most of these challenges were unsuccessful, with a few notable exceptions, as discussed in Part V below.

35.  In a rare move, New York’s health department used emergency rulemaking procedures to endorse some of the Governor’s executive orders. Covid-19 emergency regulations extend the state’s face covering order for everyone over age two ‘when in a public place and unable to maintain, or when not maintaining, social distance.’59 They also cover the state’s prohibition on non-essential gatherings of more than 10 individuals, subject to modification by executive order and require physical distancing for gatherings of 10 or fewer people.60 Finally, emergency regulations cover prohibitions on in-person work at nonessential businesses, limited service hours for bars and gyms, and closure of shopping malls, again, subject to modification via executive order. But in most states emergency rulemaking was uncommon.

36.  Hundreds of legal challenges to federal, state, and local emergency orders and the declarations on which they rely have been challenged in courts of law. These challenges have alleged infringements of individual rights protected by the federal and state constitutions and statutes, lack of statutory authority for executive action, and violations of separation of powers principles enshrined in the federal and state constitutions. One example was a reliance on executive authority that triggered legal challenges on the grounds that executive actions exceeded the scope of officials’ statutory authority or, in the alternative, that legislative delegation of such sweeping authority violated the constitutional requirement of separation of powers (see Part III.A below).

D.  Guidance

37.  Throughout the pandemic, federal, state, and local officials have relied heavily on voluntary approaches and guidance. In Texas, for example, the public health commissioner’s 19 March 2020 public health disaster declaration, citing the personal responsibility provision in the state’s communicable disease control statute, exhorted residents to limit their time away from home to ‘essential outings’, to limit their close contact with people outside their household, and to avoid gathering in ‘social groups’ of more than 10 people. The declaration also called on (but did not require) employers to ‘allow work at home alternatives to the greatest extent possible’ and urged (but did not require) that ‘[r]estaurants should not allow dine-in options.’61

38.  As described further in Part IV.A.1, the line between mandatory orders and non-binding recommendations was often blurred in state and local orders. Executive orders often combined mandatory and non-mandatory directives in a single document. Even measures announced as mandatory were often accompanied by assurances that they would not be enforced, sometimes followed by later assurances that they were, nonetheless, mandatory. Both the text of the orders and officials’ statements about them in press conferences were often vague about whether they were offering advice, issuing commands that were merely hortatory, or issuing orders that would be enforced on the ground.

39.  At the federal level, the CDC and the White House issued guidance in conflict with each other during the early months of the pandemic, as discussed in Part III.E below.

III.  Institutions and Oversight

A.  The role of legislatures in supervising the executive

40.  At the federal level, Congress has not acted during the pandemic to limit the authority of the President, the HHS Secretary, or the CDC Director. In several states, however, legislatures have sought to reverse the decisions of governors and health officials, including by filing court challenges.

41.  Under the Public Health Service Act, a public health emergency determination expires after 90 days, but may be renewed unilaterally by the HHS Secretary.62 The initial determination and any renewals require written notification to Congress, but the statute does not specifically provide for a mechanism by which Congress may override a determination—other than by repealing the statute authorizing it, which would be subject to a presidential veto.

42.  State statutes typically include provisions for time-limited but unilaterally renewable emergency and disaster declarations, with health officials’ declarations subject to override by the Governor and Governor’s declarations subject to override by the legislature. In most states, the legislature is empowered to terminate an emergency or disaster declaration through a joint resolution that is not subject to a veto by the Governor.63 In some cases, lifting a declaration would threaten the state’s access to federal resources, in addition to invalidating public health directives. Overriding a specific directive or order without terminating the underlying emergency declaration typically requires legislation that is subject to veto.

43.  For example, the Texas emergency management statute limits each disaster declaration by the Governor to a 30-day period, but authorizes unilateral renewal by the Governor. It specifies that the legislature ‘may terminate a state of disaster at any time’ and ‘[o]n termination by the legislature, the Governor shall issue an executive order ending the state of disaster.’64 Similarly, the Texas communicable disease control statute limits the declaration of a public health disaster to 30 days, subject to renewal by the health commissioner and subject to termination by the Governor ‘at any time.’65

44.  The New York disaster statute, as amended in March 2020, limited disaster declarations to a period of six months and authorized the Governor to extend the declaration for additional six-month periods. Directives issued pursuant to a disaster declaration were limited by statute to 30-day increments, subject to unilateral renewal for additional 30-day periods. The New York legislature voted in March 2021 to terminate some of the expansive emergency powers it had authorized a little over a year earlier.66 The new legislation grandfathered in executive directives in effect at the time the new legislation was adopted by allowing them to stay in effect for 30 additional days and allowing the Governor to extend or modify them unilaterally for additional 30-day terms. Extension or modification of grandfathered orders requires a five-day notice-and-comment period unless the Governor certifies that extension is ‘necessary to address any exigent circumstances that address an imminent threat to public health or safety,’ and provides an opportunity for comment from legislative committee chairs ‘as soon as possible.’ Second or later extensions are barred until the Governor has responded to any comments provided by relevant legislative committee chairs and leaders of affected local governments. The newly amended statute prohibits the Governor from issuing any new ‘public health directive related to managing the covid pandemic’ without legislative approval. It also clarifies that the legislature can terminate an executive directive or order at any time via a concurrent resolution that is not subject to veto. In addition, the amendments require the Governor to provide information detailing the justification for emergency directives on a government website in a searchable format.

45.  In several other states, legislative bodies sought to limit executive authority.67 In early 2021, several state legislatures weighed measures that would authorize a small committee of legislators to overturn executive orders—rather than depending on the ordinary legislative process to do so. Other reforms, such as legislation adopted by the Ohio legislature after overriding the Governor’s veto on 24 March 2021, imposed strict time limits on emergency declarations by governors, with all measures subsequently lifted by default unless the legislature acts affirmatively to approve them.68 Commentators urged caution regarding reforms that would tie the hands of executive-branch officials to implement swift responses and nimble adjustments to public health measures for the coming stages of the Covid-19 pandemic and for future public health emergencies.69

46.  In some states, legislatures filed legal challenges asking courts to overturn emergency declarations and directives issued by state executive-branch officials. Rather than relying on the legislative process to override an executive declaration, the legislatures in these states argued that the declarations and the orders on which they relied exceeded the scope of officials’ statutory authority. Many state courts rejected these challenges. In Wisconsin and Michigan, however, the state supreme courts sided with the legislatures and declared executive actions invalid.

47.  In May 2020, the Wisconsin Supreme Court lifted the state health department’s extended stay-at-home order.70 The court described the state health secretary as having ‘quarantine[d] “[a]ll individuals present within the State of Wisconsin” by ordering them “to stay at home or at their place of residence” with exceptions she deems appropriate.’71 The court held that the order exceeded the scope of the state quarantine statute because it was ‘not based on persons infected or suspected of being infected’, as required for a quarantine order directed at individuals.72 Moreover, the court found the order was not a permissible exercise of the health department’s authorities to ‘implement all emergency measures necessary to control communicable diseases’ or ‘to [guard] against any introduction of communicable disease into the state’ under other provisions of the state’s public health statute.73 The court interpreted these provisions narrowly in light of the state constitution’s requirement of separation of powers, reasoning that it ‘cannot expansively read statutes with imprecise terminology that purport to delegate lawmaking authority to an administrative agency.’74 This result, according to the court, was dictated by a 2011 amendment to the state’s Administrative Procedure Act (APA), part of then-Governor Scott Walker’s efforts to roll back business regulation.75 The court held that agencies were prohibited from ‘circumventing [the 2011 amendment’s] new “explicit authority” requirement by simply utilizing broad statutes describing the agency’s general duties or legislative purpose as a blank check for regulatory authority.’76 The court’s narrow interpretation of broad grants of authority to control communicable disease was entwined with its expansive interpretation of a separate provision directing that ‘unless a rule has been promulgated [via an emergency rulemaking process subject to legislative veto] or the [agency] action is “explicitly required or explicitly permitted by statute” [the agency] has no power to implement or enforce its directives.’77

48.  In October 2020, the Michigan Supreme Court held that that the state’s emergency powers act violated the state constitution’s requirement of separation of powers by delegating legislative power to the Governor and providing insufficient standards to guide the Governor’s discretion.78 In at least some states, state-constitution non-delegation doctrines have regularly been more restrictive of executive power/legislative delegations than the federal constitutional law non-delegation doctrine applied in the post-Lochner period.79 Thus, the Michigan Supreme Court invalidated orders issued by the Governor under the act’s authority.80 The Michigan Supreme Court found statutory standards authorizing actions reasonably necessary to respond to an emergency insufficient. The court’s non-delegation analysis tied the specificity of the statutory standards required for a statute to survive a non-delegation challenge to the specificity of the subject over which the statute authorizes the Governor to wield authority. The court determined that ‘the standards [the statute] prescribed for guidance must be as reasonably precise as the subject-matter requires or permits.’81 ‘In other words, it is one thing if a statute confers a great degree of discretion, ie power, over a narrow subject; it is quite another if that power can be brought to bear on something as “immense” as an entire economy.’82 The court also pointed to the challenged order’s invocation of criminal sanctions, its impact on individual rights protected by the federal and state constitutions, and its lack of firm time limits as reasons to require more specific statutory limits.

49.  Following these state supreme court decisions, the Wisconsin and Michigan health departments relied on different statutes to issue new orders limiting gatherings and mandating face coverings.83 In Michigan, the state health department issued an emergency order under a provision specifically authorizing the department to ‘prohibit the gathering of people for any purpose’ if the director determines that ‘control of an epidemic is necessary to protect the public health.’84 The order defined ‘gathering’ as ‘any occurrence where persons from multiple households are present in a shared space’—which includes ‘incidental gathering of persons in … an airport, bus station, factory floor, restaurant, shopping mall … or workplace’. The order went on to mandate that schools and businesses must require individuals to wear face coverings at gatherings, effectively mandating masks in stores and workplaces where people from multiple households are present.85 Similarly, in Wisconsin, the state health secretary issued an emergency order under a provision specifically empowering the health department to ‘forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics.’86 The Wisconsin order defined ‘public gathering’ to include a ‘collection of individuals, whether planned or spontaneous, that is open to the public and brings together people who are not part of the same household in a single room’ and, more specifically, defined a place that is ‘open to the public’ to include ‘rooms within a business location, store, or facility that allow members of the public to enter.’ The order went on to limit occupancy of and require face coverings at stores and businesses where ‘gatherings’ were occurring. This order was invalidated by the Wisconsin Supreme Court in March 2021. The court held that the Governor exceeded his statutory authority by repeatedly extending emergency declarations.87 The court ruled that following an initial 60-day period, extensions require legislative approval, finding that ‘[t]he statute contemplates that the power to end and to refuse to extend a state of emergency resides with the legislature even when the underlying occurrence creating the emergency remains a threat.’ In both Wisconsin and Michigan, local health departments sought to fill the gaps created by the state supreme court’s decision invalidating state orders.

B.  The functioning of the legislature where its ordinary business is disrupted

50.  At the federal level, the US Congress continued to meet in person throughout the pandemic, in spite of several legislators testing positive and many more being required to quarantine due to suspected exposures.

51.  Citing security and reliability concerns, a March 2020 report of the US House of Representatives Committee on Rules Majority Staff concluded that while ‘[i]t may be prudent to consider the feasibility of remote voting for certain emergency situations, … that decision should be a multi-committee effort with substantial study and development.’ Ultimately, the report determined that such a ‘change cannot be implemented overnight, and likely cannot be accomplished in time to address the current crisis.’88 In May 2020, the House of Representatives passed a resolution changing the body’s standing rules to allow House committees to conduct remote proceedings and to establish a process for proxy voting on the House floor—whereby a legislator may designate a fellow legislator as a proxy to vote in person on their behalf—during periods when a ‘public health emergency due to a novel coronavirus is in effect.’89 The resolution was adopted following a vote in which every member voted along party lines. Several House Republicans filed a lawsuit seeking to declare proxy voting unconstitutional. The district court dismissed the suit for lack of jurisdiction, on the grounds that the resolution was immunized from judicial review by the Constitution’s Speech and Debate Clause. The court of appeals affirmed.90

52.  The US Congress failed to adopt any expedited procedures to facilitate urgently needed legislation in response to Covid-19. As a result, only a handful of federal legislative measures were adopted and appropriations of funding for testing, contact tracing, and vaccine distribution were held up for months amidst partisan battles over the appropriate role of government (see Part V.A below)

53.  At the state level, where some legislatures serve on a part-time basis and may meet for a relatively brief session (as short as 30 days in some states) once per year,91 legislatures took varying approaches to implementing expedited procedures and ensuring continuity of operations, depending on the constitutional and statutory constraints applicable.92

54.  In California, the state constitution requires that ‘no bill may be passed or ultimately become a statute’ unless it has been ‘printed, distributed to the members, and published on the Internet, in its final form, for at least 72 hours before the vote.’93 The requirement may be waived, however, pursuant to a written statement from the Governor that waiving the notice period is necessary to address a state of emergency. The Governor provided the necessary statement, authorizing expedited procedures. The California legislature is typically in session for much of the calendar year and it continued throughout most of the pandemic, other than a brief suspension from mid-March to early May 2020.94 The California state senate adopted a resolution allowing for remote participation in meetings.95 The state house of representatives failed to reach consensus on a remote participation provision,96 but did adopt rules allowing proxy voting.97

55.  In New York, where the state legislature typically convenes during the first six months of the calendar year, the legislature suspended its session for most of April and May 2020.98 The New York legislature also altered its rules to allow members to participate in proceedings by remote means during a declared emergency.99

56.  In Texas, where the state legislature typically meets during the first five months of the year, legislative activity was suspended for about three weeks in March 2020.100 The state legislature did not adopt any rule changes to allow for remote or proxy voting.101

C.  Role of and access to courts

57.  Courts continued some operations throughout much of the pandemic, but suspension and sharp restrictions on in-person proceedings caused significant delays.102 These delays were particularly concerning for criminal defendants in pre-trial detention.103 Courts reviewed executive orders in response to civil cases initiated by parties, as discussed in Part III.A above and Part VI.A below. Most courts issued orders modifying their operations to allow for remote operations for at least some types of proceedings during at least some periods of time during the pandemic. In some cases, courts even conducted jury trials remotely. Reliance on video technology for remote proceedings hindered attorney-client communications for criminal defendants and made it harder for criminal defendants to access representation and support typically available in courthouses. In addition, studies of bail hearings, immigration court proceedings, and criminal proceedings involving witness testimony by children indicated that conducting proceedings via video conference affects the outcomes of those proceedings.104

58.  State courts adopted various approaches to continuity of operations, including remote proceedings, during the pandemic.105 In California, there were no state-wide rules regarding suspension of onsite operations, including jury trials.106 Instead, local courts were given discretion to conduct remote operations in civil and criminal cases. A Pandemic Continuity of Operations Working Group made up of dozens of judges provided a resource guide to courts setting forth the principles that should guide local decisions.107 Similarly, in New York, local judicial districts issued orders governing local court operations.108 In Texas, the Texas Supreme Court exercised more centralized control over local court operations through a series of emergency orders that adopted some rules on a state-wide basis and left other matters to the discretion of local courts.109

D.  Elections

59.  2020 was a major election year in the United States, including the election of the President, the entire House, a third of the Senate, and thousands of state and local races. State officials have authority over elections, including elections for federal candidates and officials. In March 2020, primary elections were scheduled to take place in states across the country. In many states, Governors issued executive orders postponing some elections and permitting voting by mail in others.110 In a few cases, courts issued orders altering absentee ballot procedures in response to challenges from voters alleging that changes were needed to respect voting rights protected by state and federal law. In Wisconsin, for example, a federal district court issued an order that would have allowed mail-in ballots to be counted so long as they arrived at the designated polling place six days after election day, but the lower court’s order was overturned by the US Supreme Court.111 Postal service delays throughout 2020 exacerbated concerns that stringent deadlines would disenfranchise voters by leaving ballots mailed by election day—or even well before—uncounted. Disputes over who had authority to implement safer alternatives to in-person voting for the general election in November 2020 led to further court battles in multiple states in the fall of 2020, with some legal challenges continuing for several weeks after the elections were over.112 A protest rally held by President Trump on 6 January 2021 after courts had unanimously rejected his claims of voting irregularities ultimately led to an insurrectionist siege on the US Capitol where Congress was in the process of certifying election results. Rioters stormed the Capitol building and in the ensuing violence there were a handful of deaths and over one hundred people injured.113 The President was subsequently impeached by the House of Representatives. The result of the subsequent trial in the Senate was that 57 Senators voted to convict, short of the two-thirds required under the Constitution.114

E.  Scientific advice

60.  State governors are typically advised by health secretaries whom they appoint as cabinet ministers and who oversee state health departments. Local governments are typically served by county and city health departments, headed by commissioners, boards of health, or some combination of the two. At the federal level, the President appoints the HHS Secretary, who oversees the CDC and the Food and Drug Administration (FDA), among other agencies. Independent bodies of scientific experts frequently release their own guidance and assessments and may play an informal role in guiding government health agencies and elected officials, but there is not a formal commission of outside experts to oversee the pandemic response as a whole.

61.  Two notable exceptions both relate to vaccination. The Vaccines and Related Biological Products Advisory Committee (VRBPAC) is a group of outside medical experts convened by the FDA’s Center for Biologics Evaluation and Research to develop and vote on recommendations regarding FDA approval or emergency use authorization of new products (for Covid-19 and other indications).115 The Advisory Committee on Immunization Practices (ACIP), is a group of outside medical and public health experts convened by CDC to develop and vote on recommendations regarding who should be vaccinated and according to what schedule (for Covid-19 and other vaccinations).116 These groups deliberate in open hearings, as required by their charters.

62.  Outside of these formal advisory committees, the advice health officials and independent experts provide to elected officials often occurs behind closed doors, though health agencies and independent scientific advisory groups do typically publish reports surveying the scientific basis for the recommendations they provide to the public, businesses, and other organizations. Courts hearing legal challenges to public health mandates and restrictions may require defendant-officials to provide additional information about the scientific basis for their decisions—as a matter of satisfying constitutional standards of judicial review to secure individual rights or statutory requirements to ensure that executive-branch officials are exercising their discretion in ways that are consistent with the standards set forth by the legislature.

63.  Public health and emergency management statutes typically include substantive standards that must be satisfied to justify the exercise of the powers they confer on executive-branch officials. In the federal Public Health Services Act and many state public health codes, certain disease control powers are contingent on a finding of ‘public health necessity’ by officials who are appointed based on their scientific expertise.117 The general emergency and disaster management statutes that state officials more commonly relied on during the Covid-19 pandemic are less likely to include a requirement tied to scientific assessments of public health risks. Instead, these statutes typically require a finding that measures are reasonable and necessary to ‘protect life and property or to bring the emergency situation within the affected area under control.’118

64.  Throughout the pandemic, elected and appointed officials frequently claimed to be ‘following the science’, but there was considerable disagreement over—and overt politicization of—what the scientific evidence directed officials to do. Politicization of scientific advice was particularly prominent at the national level, with impacts on state and local responses as well.

65.  The CDC is tasked with providing non-binding scientific advice to elected officials (including officials serving state, local, and tribal governments), private organizations, and the general public.119 It also has authority to issue binding orders, as discussed in Part II.B above. The process by which CDC develops and revises its guidelines is not fully transparent, though the agency usually provides reports and other materials describing the evidence basis on which it has relied.120 Throughout most of the pandemic, federal guidelines struggled to keep pace with the restrictions and mandates imposed by state and local governments. As discussed below, at times the White House released its own guidelines, which did not comport with those released by CDC.

66.  On 12 March 2020, the CDC quietly posted a document titled ‘Implementation of Mitigation Strategies for Communities with Local Covid-19 Transmission’ on its website.121 Described as ‘a framework for actions which local and state health departments can recommend in their community’, the document advised that ‘actions should be guided by the local characteristics of disease transmission, demographics, and public health and healthcare system capacity.’ 122 In places with ‘substantial’ community transmission, defined as occurring when ‘healthcare staffing [is] significantly impacted [and there are] multiple cases within communal settings like healthcare facilities, schools, mass gatherings etc.’,123 the framework recommended that ‘[a]ll individuals should limit community movement and adapt to disruptions in routine activities (eg, school and/or work closures) according to guidance from local officials.’124 The CDC framework additionally recommended that organizations should ‘cancel community and faith-based gatherings of any size.’125

67.  The White House issued competing guidance on 16 March 2020.126 The ‘15 Days to Stop the Spread’ guidelines recommended that certain groups—people who feel ill, people who test positive for coronavirus and their family members, and people who are older or who have serious underlying health conditions that put them at increased risk—should stay at home. It also recommended that everyone should ‘avoid social gatherings in groups of more than 10 people’, ‘eating or drinking at bars, restaurants, and food courts’, and ‘discretionary travel, shopping trips, and social visits.’127 With respect to closures, the guidelines noted that ‘[g]overnors in states with evidence of community transmission should close schools in affected and surrounding areas’ and ‘[i]n states with evidence of community transmission, bars, restaurants, food courts, gyms, and other indoor and outdoor venues where groups of people congregate should be closed.’128

68.  The ‘15 Days’ guidelines were extended to 30 days, but by 16 April 2020, the President had lost patience with business closures and limits on gatherings.129 The White House released ‘Guidelines for Opening Up America Again’.130 The White House plan recommended a phased approach relying on public health indicators to determine when social gatherings should resume and when schools and the types of businesses that the previous White House guidelines had recommended should be closed could reopen. Notably, there were no criteria for lifting mandatory orders to stay at home or prohibitions on nonessential on-site business operations, since those measures had not been endorsed by the White House in the first place. The guidelines established ‘gating’ criteria for reopening large venues and gyms after a sustained downward trajectory in the number of syndromic and reported cases for 14 days and at a point when hospitals are able to treat patients without resorting to crisis standards of care. The day after the reopening plan was released, the President tweeted that three states with governors from the Democratic Party must immediately ‘LIBERATE’, even though gating criteria in the White House plan had not been met. The tweets provided further fuel for protests against state governors and health officials.131

69.  The focus of scientific guidelines shifted considerably with the election of President Biden. Even before he was inaugurated on 21 January 2021, Biden’s task force began releasing plans for ramping up vaccine distribution while maintaining compliance with face covering requirements and limits on gatherings.

70.  The early months of the Biden administration have been marked by continued controversy over CDC guidance, however. In the early weeks of the Biden administration, CDC guidelines for reopening schools initially supported reopening prior to full vaccination of educators and staff, but were then revised to adopt a more cautious approach, apparently in response to pressure from teachers’ unions.132 In May 2021, Biden’s CDC Director was harshly criticized for advising that vaccinated people could stop wearing masks.133 The guidance appeared to have been aimed at motivating more people to get vaccinated, but public health experts viewed it as problematic, especially since vaccination status could not be reliably verified in most public settings. In July 2021, the agency again revised its guidance to state that vaccinated people should wear masks indoors in areas where there are 50 or more cases per 100,000 people over a 7-day period, citing increased risk of transmission by vaccinated people due to the Delta variant.134 The CDC did not immediately release the data on which this recommendation was based, leading to widely divergent interpretations of the director’s statements to the press.135

71.  Similar controversy followed the Biden administration’s statements in August 2021 that third doses of mRNA vaccines would be offered to all adults within a few weeks.136 These statements preceded the deliberations of VRBPAC and ACIP, the independent scientific advisory panels tasked with making recommendations related to vaccines. Those panels eventually adopted recommendations that were narrower than what the administration had led the public to expect. The CDC Director then issued guidance making third doses available to some groups who would not have had access under ACIP’s recommendations, while still falling short of what the administration had previously announced.137

F.  Freedom of the press and freedom of information

72.  Journalists are typically exempted from public health restrictions to preserve the freedom of the press guaranteed by the First Amendment to the US Constitution. In California, for example, ‘radio, television, and media service, including, but not limited to front line news reporters, studio, and technicians for newsgathering, reporting, and publishing news’ were among the ‘essential’ activities exempted from stay-at-home orders and gathering restrictions.138 Similar provisions appeared in other states’ orders.

73.  Elected leaders and health officials held frequent press conferences to inform the public. In addition, federal and state Freedom of Information Acts (FOIA) remain in effect.139 In practice, however, responses to FOIA requests have been delayed due to practical constraints associated with teleworking arrangements that apply to public records officers.140

G.  Ombuds and oversight bodies

74.  Ombuds are not an integral part of the governance structure at the federal or state levels, though some agencies have ombuds with a relatively narrow purview.141 States have considered proposals to authorize committees of legislators to review and potentially overturn executive orders, but this approach has not played a significant role in the current pandemic thus far.

IV.  Public Health Measures, Enforcement and Compliance

A.  Public health measures

75.  As of October 2021, the US pandemic response can roughly be categorized in terms of four distinct waves of Covid-19 deaths. First, in the spring of 2020, the majority of states and many local governments implemented stringent public health measures touted as necessary to ‘flatten the curve’ and protect health care capacity during the first wave of deaths, which predominantly affected the northeastern part of the country. In late spring 2020, during a period when reported cases were declining, many states began easing restrictions as rapidly as they had imposed them. In summer 2020, reported cases began to surge again, leading to a second wave of deaths, predominantly in states across the southern part of the country. During this period, some states modestly re-tightened their restrictions and many more adopted face covering requirements and self-quarantine orders for people travelling from higher-prevalence states. In fall 2020, the third (and, to date, the largest) wave of reported Covid-19 deaths began. It started in the midwestern part of the country, but eventually affected many regions simultaneously. Around the peak of the third wave in winter 2020–21, many states re-imposed closures of bars and indoor dining, but none implemented restrictions as sweeping as those that had been ordered in the first wave. In spring 2021, states rapidly lifted remaining restrictions and mask requirements, even as experts warned that more transmissible variants were on the rise. The Delta variant caused a fourth wave of deaths beginning in July 2021. Some jurisdictions reinstituted universal mask requirements in indoor public spaces (regardless of vaccination status) and some instituted vaccination requirements for university students, employees in certain settings, and as a condition of entry at indoor gathering places and mass events. In other jurisdictions—including many that were hardest hit in the summer and fall of 2021—virtually no public health measures were in place.

76.  Initially, in early 2020, public health messages aimed at the general public urged people to maintain a distance of six feet from people outside of their households, to wash hands frequently, to wear face masks only if sick, and to work from home if possible. But as reports of overwhelmed hospitals in Italy dominated US media, and as scientific understanding of the public health threat evolved, guidance—and eventually mandatory orders—changed rapidly. Public health experts sounded the alarm, urging governments and institutions to act immediately to ‘flatten the curve’ and protect hospital capacity by implementing social distancing plans. The vast majority of these measures were not sustained over the long term as subsequent waves hit.

1.  Individual mobility restrictions on citizens (stay-at-home, curfews, etc)

77.  In the latter half of March 2020, state and local governments issued orders that exceeded what federal guidelines recommended, as described in Part III.E above. Lack of testing left leaders uncertain about whether substantial community transmission would soon overwhelm hospitals, prompting many to adopt the precautionary principle. On 16 March, the same day the White House issued its 15 Days guidance which stopped far short of advising the general public to stay at home, seven local health officers in the San Francisco Bay Area followed the examples set by China and Italy and issued mandatory stay-at-home orders and prohibitions on all onsite business operations deemed nonessential.142 Three days later, on 19 March, the Governor of California issued the first state-wide stay-at-home order.143 Dozens of states rapidly followed suit.

78.  The specifics of restrictions on individual citizens’ mobility during the early weeks of the pandemic varied considerably from state to state. Resources tracking stay-at-home orders typically listed both New York and Texas among the states that had ordered residents to stay at home.144 In reality, Governor Cuomo’s order directed businesses and organizations to ‘reduce the in-person workforce at any work locations by 100%’, with exceptions for essential workers and activities, functionally closing nonessential businesses and activities, but without specifically ordering residents to stay at home.145 Cuomo ‘shied away from the language of a shelter-in-place order, which he said evoked images of shooter situations or nuclear war. “Words matter,” the governor said, instead describing it as putting all of New York on pause.’146 Similarly, in Texas, Governor Abbott stated in a press briefing that he was not issuing a stay-at-home order, ‘arguing such labels leave the wrong impression and that he wants Texans to know, for example, they can still go to the grocery store.’147 The order he signed directed that ‘every person in Texas shall, except where necessary to provide or obtain essential services, minimize social gatherings and minimize in-person contact with people who are not in the same household.’148 Two days later, Abbott ‘clarified his previously issued executive order, saying that it “requires all Texans to stay at home” except for essential activities.’149

79.  By late March 2020, most governors had adopted some form of a state-wide mandate for the general public to stay home except for essential work, errands, and some forms of outdoor exercise. In states that did not yet have a stay-at-home order, some local jurisdictions imposed curfews, which fell within their local authority. Some state and local orders threatened violators with criminal penalties. Others relied on administrative sanctions and civil penalties, including citations, fines, and loss of business licenses. By the end of March 2020, when the White House replaced its 15 Days guidance with ‘30 Days to Slow the Spread’,150 which still stopped far short of advising the general public to stay at home or nonessential businesses to close onsite operations, the majority of states had gone significantly further than the White House or CDC guidance recommended. In April 2020, more states added stay-at-home orders and others issued extensions.

80.  Although hundreds of lawsuits were filed to enjoin various public health measures throughout the pandemic, ‘[o]nly a few plaintiffs have “challenge[d] the constitutionality of the very concept of a stay-at-home order,” which some have described as “plac[ing] plaintiffs under house arrest unless they are engaged in activity the government deems essential or which are otherwise authorized.”’151 The few courts that did reach this issue mostly upheld the challenged directive pursuant to the Jacobson suspension standard of review, the validity of which was later called into question by the US Supreme Court (see Part II.A above).152 As discussed in more detail below, at least one court upheld an order to stay at home after applying ordinary standards of review,153 and at least one court applying ordinary standards of review ruled that orders to stay at home violate constitutional protections for individual liberty.154

81.  Most courts rejected challenges to stay-at-home orders on the grounds that they infringed on personal liberty. For example, a federal district court judge in Arizona rejected the plaintiff’s argument that orders to stay at home violated his rights to freedom of movement and travel. Applying the Jacobson suspension standard, the court noted that the order included exceptions for ‘engaging in constitutionally protected activities, outdoor exercise, caring for family members or friends in other residences, attending work or volunteering in essential functions, visiting retailers, and other “essential activities”.’155 Similarly, a federal district court judge in Colorado cautioned that state officials ‘underestimate the potential constitutional implications of a stay-at-home order’ but ultimately upheld the challenged restrictions based on the Jacobson suspension doctrine. The court found that the plaintiff ‘has not shown that being denied [social visits or travel] under the present circumstances constitutes a plain and palpable deprivation of any recognized constitutional right’.156 In California, a federal district court judge rejected the plaintiff’s right to travel challenge to stay-at-home orders because, ‘although the Supreme Court … “certainly [is] not dismissive of the possibility”’ that a right to intrastate travel exists, the court ‘cannot find that the State and County orders violate “beyond all question” [quoting Jacobson] a right that is not yet known to exist.’157

82.  Only one court appears to have upheld a stay-at-home order after applying ordinary standards of judicial review, rather than the Jacobson standard that the US Supreme Court appears to have rejected. A federal district court judge in Florida upheld the Governor’s executive orders directing, inter alia, that ‘all persons in Florida shall limit their movements and personal interactions outside of their home only to those necessary to obtain or provide essential services or conduct essential activities’ after rejecting the Jacobson suspension standard and reasoning that ‘[t]he Supreme Court has not found a “generalized right of ‘social association’” under the First Amendment’s freedom of association.’158

2.  Restrictions on international and internal travel

83.  Travel restrictions have been widely adopted in the US. On 31 January 2020, President Trump announced a mandatory quarantine for all American travelers returning from the People’s Republic of China and an order denying entry for all foreign nationals, other than immediate relatives of US citizens, who had travelled to the People’s Republic of China in the previous two weeks.159 Subsequent orders, which were periodically renewed and modified, applied similar restrictions to travelers from Iran, the Schengen Area, the United Kingdom, the Republic of Ireland, Brazil, and South Africa.160 Federal orders restricting entry into the US from specific countries were maintained for several months, even at times when community transmission within the US exceeded the reported level of community transmission in the countries specified in the orders.

84.  Internal travel restrictions took the form of travelers’ quarantines, with many states imposing self-quarantine requirements for travelers entering or returning from specified locations. In many states, these requirements were tied to indicators such as test-positivity rate or the number of daily reported cases per 100,000 population.161

85.  In March 2020, several states issued orders for travelers from specific areas within the US where early outbreaks were reported to self-quarantine. These early orders most commonly focused on travelers from New York, New Jersey, and Connecticut, with some states also including Louisiana. In Texas, for example, the Governor issued an executive order directing that air travelers entering the state from points of departure in New York, New Jersey, Connecticut, or the city of New Orleans, Louisiana to self-quarantine.162 A few days later, he issued a similar order for travelers entering by roadway from the state of Louisiana. The order exempted ‘people traveling in connection with commercial activity, military service, emergency response, health response, or critical-infrastructure functions.’163 In June 2020, the tables were turned and states that had experienced early peaks in the spring issued orders quarantining travelers from other states, including Texas, experiencing summer outbreaks. For example, New York’s Governor issued a self-quarantine order for travelers entering from a state with positive test rate above 10 per 100,000 residents or higher than 10% test positivity.164 Some states, including California, did not issue mandatory travelers’ quarantines at the state level, but permitted local governments to do so.

86.  Restrictions on internal travel were challenged in a handful of states, and federal courts were split on their constitutionality. For example, a federal district court judge in Hawaii upheld the state’s travel quarantine after adopting the interpretation of Jacobson as suspending ordinary standards of review.165 The court characterized the 14-day quarantine as a ‘restriction (not ban)’ and found it to satisfy the reasonableness standard set forth in Jacobson. In Maine, a federal district court judge upheld a state law that required most travelers from out of state to self-quarantine and prohibited self-quarantining in temporary lodgings. The combination of the two directives resulted in a de facto ban on travel across state lines, which the court determined triggered strict scrutiny—akin to the least restrictive alternative standard, requiring very narrow tailoring of means to ends—in light of constitutional protection for the right to travel. The court rejected the Jacobson suspension doctrine, but found the very high standard of strict scrutiny to be met in light of the exigencies of the pandemic. The judge cautioned, however, that as testing became more widely available, state officials would be constitutionally required to implement test-based alternatives that would be less restrictive of liberty.

87.  A federal district court judge in Kentucky enjoined enforcement of the Governor’s restrictions on out-of-state travel on the grounds that they infringed on rights protected by due process and would probably fail the strict scrutiny test because they were not narrowly tailored to serve a compelling state interest.166 A federal district court judge in Pennsylvania held that the state’s stay-at-home order violated rights to intra-state travel and to economic liberty.167 Relying on precedents invalidating juvenile curfews and laws prohibiting cruising, loitering, and vagrancy, the judge identified rights to intrastate travel and freedom of movement as fundamental to the concept of ordered liberty.168 Although those precedents had applied intermediate scrutiny—requiring a tighter fit between end and means, with less over- or under-inclusiveness, than mere rationality review—on the grounds that anti-loitering laws and similar restrictions on movement are akin to time, place, and manner restrictions on the freedom of speech, the federal court judge in Pennsylvania argued that the greater intrusiveness of the stay-at-home order merited the application of strict scrutiny, the highest standard of judicial review.

3.  Limitations on public and private gatherings and events

88.  All 50 US states adopted limits on gatherings, though caps varied widely from time to time and place to place. In March 2020, limits on gatherings were rapidly tightened in many states from limits on events attended by more than 1,000 or 500 people, to caps of 50, 25, and 10 individuals per gathering, to prohibitions on all gatherings of any size among people who do not share a household. In New York, for example, the Governor issued an executive order on 12 March 2020 prohibiting gatherings of more than 500 people.169 On 16 March, the limit was lowered to 50 people.170 On 23 March, the Governor issued an order directing that ‘[n]on-essential gatherings of individuals of any size for any reason (eg parties, celebrations or other social events) are canceled or postponed at this time.’171 Many state governors eased these limits by early summer, and then retightened them in response to new surges.

89.  In some states, gathering restrictions varied from locality to locality. In California, for example, county governments were the first to begin prohibiting mass gatherings—beginning with limits of 1000 people—in the first week of March.172 The Governor announced a state-wide gathering limit of 250 people on 11 March 2020, imposed by the state public health officer.173 In the days that followed, some local governments tightened their numerical limits to 100.174 As some California counties adopted stay-at-home orders prohibiting non-essential gatherings of any size, others tightened their gathering bans further.175 Later, when Governor Newsom repeatedly renewed and amended his statewide stay-at-home order, he adopted a county-by-county approach, but imposed limits on each county based on state-determined, phased ‘reopening’ criteria, rather than giving counties free reign to set their own limits.176 In New York, Governor Cuomo adopted a similar state-imposed, but locally variable approach to retightening limits on gatherings during the fall 2020 wave.177

90.  Notably, California’s phased reopening plan allowed a wide range of non-essential businesses to reopen at various stages, but did not specifically lift the state-wide restriction on social gatherings outside of those businesses.178 This was in keeping with a broader trend among some governors and local officials of allowing businesses to reopen, including bars and restaurants where gatherings could occur, while continuing to sharply limit (or prohibit altogether) social gatherings in private homes. On 15 June 2021, California lifted all previous limits and imposed a new plan that directs attendees at ‘mega gatherings’ of 5000 or more people indoors (eg, concerts and sporting events) to confirm proof of vaccination or a negative test result.179

91.  In Texas, limits on gatherings also varied from county to county, though the Governor eventually curtailed local authority to adopt tighter limits than his state-wide order imposed. In the third week of March 2020, local officials in many parts of the state issued orders limiting gatherings.180 These orders typically adopted a low initial limit of 10 participants, in keeping with the scope of gathering limits in other parts of the country during this time period. On 31 March 2020, when Governor Abbott issued his order directing residents to ‘minimize’ nonessential in-person interactions outside the home—without setting any specific limit on gatherings—he included a provision stating that the restrictions he adopted superseded local orders ‘only to the extent that … a local order … allows gatherings prohibited by [the state] executive order.’181 This so-called ‘floor preemption’ approach to gathering limits established a baseline on a state-wide basis (the nonspecific directive to ‘minimize’ gatherings) but allowed local governments to impose tighter (and more specific) limits on gatherings. In the days that followed Abbott’s stay-at-home order, local governments further tightened their gathering bans. For example, El Paso County, which was particularly hard-hit by Covid-19, prohibited gatherings of any number of people outside a single household on 1 April 2020.182

92.  Gathering limits were eased in some parts of the Texas in late spring 2020—including in response to state-imposed constraints on local authority—then retightened as the summer 2020 wave hit Texas. The easing and retightening process was plagued by near-constant disputes between various jurisdictional levels. On 3 June 2020, Abbott issued an executive order raising capacity limits for a wide range of indoor and outdoor public venues (as discussed in Part IV.A.4 below).183 This order specifically authorized local officials to impose restrictions on outdoor gatherings of 500 or more, except in specified settings where higher limits were allowed under the state order.184 On 23 June, Abbott issued a proclamation amending the order to authorize local limits on outdoor gatherings of 100 or more.185 As conditions worsened in many parts of the state, Abbott issued a new order on 26 June that specified lower capacity limits for public indoor venues and provided that all outdoor gatherings of 100 or more must be affirmatively authorized by local officials.186 On 2 July 2020—in anticipation of 4 July holiday celebrations—Abbott issued a proclamation amending a previous order to prohibit outdoor gatherings of 10 or more without affirmative authorization from local officials.187 Many local governments used the discretion provided by the state order to prohibit all gatherings of 10 or more, but at least one county official issued a proclamation specifically authorizing all outdoor gatherings.188 In response, the mayor of a city located within the county offered a public statement indicating that the city government would continue to evaluate requests for gatherings of 10 or more on a case-by-case basis in spite of the county official’s proclamation that all such gatherings were permitted.189

93.  Prohibitions on gatherings were challenged in dozens of lawsuits alleging that they violated rights to freedom of assembly and free exercise of religion protected by the First Amendment to the US Constitution. A federal district court judge in Kentucky offered a rare rebuke of a state gathering ban on freedom-of-assembly grounds, holding that ‘a blanket prohibition on gathering in large groups to express constitutionally protected speech is unconstitutional. When liberty is at stake, policy makers must be more precise.’190 The plaintiffs were residents who opposed the Governor’s orders and wished ‘to express their views through protesting.’191 Suggesting that ‘expressive conduct—such as gathering—in a public forum’ is a form of protected speech, the judge enjoined state officials ‘from enforcing the prohibition on mass gatherings as it relates to in-person, political protests.’192 The court found the gathering ban to be a content-neutral time, place, and manner restriction and applied intermediate scrutiny. Ultimately, the court found the ban failed the intermediate scrutiny test because there were less restrictive alternatives available to accomplish the Governor’s purposes.

94.  Other courts rejected similar claims. For example, a federal district court judge in New York rejected a legal challenge by a plaintiff who planned to organize a gathering to protest Covid-19 executive orders and sought to enjoin the city from enforcing a ban on non-essential gatherings of any size.193 The court applied intermediate scrutiny but found the order was reasonable and narrowly tailored and therefore the plaintiff was unlikely to succeed on the merits.194

95.  When many states re-imposed or re-tightened gathering limits in response to second or third waves, they typically included exceptions for gatherings for political and religious purposes. In April 2021, the US Supreme Court invalidated California’s restriction on gatherings on the grounds that officials’ failure to include an exception for religious gatherings amounted to constitutionally impermissible discrimination on the basis of religion.195

4.  Closure of premises and facilities (eg schools, shops, services, parks, churches, sport facilities)

96.  In mid-March 2020, many states closed schools and businesses, or limited their capacity. In some states, directives rapidly transitioned from focusing on higher-risk indoor gathering places to prohibitions on all non-essential, on-site activity. In New York, for example, the Governor limited capacity in businesses and public accommodations to 50% on 12 March 2020.196 On 16 March, he closed schools, bars and indoor dining, fitness centers, and movie theaters.197 This order was coordinated with governors of the neighboring states of New Jersey and Connecticut to prevent people from crossing state lines to patronize these higher-risk businesses. The Governor closed schools on 17 March 2020, making New York one of the later states to do so in spite of the fact that its outbreak was the worst in the country.198 On 18 March, he directed employers in non-essential sectors to reduce their in-person workforce by 50%,199 the next day he closed barbershops, hair salons, and other personal care services,200 and the day after that, the Governor ordered all employers in non-essential sectors to reduce their in-person workforce by 100%, effectively prohibiting all on-site operations at non-essential businesses.201 In California, the Governor’s stay-at-home order issued on 16 March simultaneously ordered all non-essential businesses to close.202 Because school staff were only permitted to work onsite for the purposes of supporting distance (online) learning, the order functionally prohibited onsite schooling.203 School districts had already made decisions to close at the local level by that point, but the Governor’s order extended the closures indefinitely.204 In Texas, the Governor’s order on 31 March directing residents to ‘minimize in-person contact with people who are not in the same household’ also directed that, ‘[i]n accordance with the Guidelines from the President and the CDC, people shall avoid eating or drinking at bars, restaurants, and food courts, or visiting gyms, massage establishments, tattoo studios, piercing studios, or cosmetology salons; provided, however, that the use of drive-thru, pickup, or delivery options for food and drinks is allowed and highly encouraged.’205

97.  By the end of March 2020, the majority of state governors had implemented widespread closures of schools, businesses, and other facilities. The details of orders varied. Nearly all states and many local governments closed schools and ordered bars, restaurants, theaters, gyms, shopping malls, and other settings where people tend to gather indoors to close or limit their operations. In a majority of jurisdictions, officials went further, closing all non-essential businesses to the public, with specified exceptions for healthcare, food and agriculture, home repair, first responders, and other sectors deemed ‘essential’ or ‘life-sustaining.’ Several jurisdictions followed the model of the first local health officer orders issued in the San Francisco Bay Area by prohibiting all non-essential on-site business activities, even for facilities closed to the public.

98.  Most states lifted their orders closing all non-essential businesses by the end of April 2020, but many, including New York and California, left restrictions in place for higher-risk facilities like indoor dining, bars, gyms, and theaters until summer.206 Others, like Texas, lifted all business closures in April 2020,207 then re-imposed limited closures (especially for bars and indoor dining) in response to subsequent surges.208 When Texas re-tightened restrictions at the state level, the governor imposed a conflict-preemption provision prohibiting local governments from imposing their own restrictions.

99.  In response to the fall 2020 wave that peaked in winter, many jurisdictions, including New York and California, imposed geographically targeted restrictions on schools, businesses, and other facilities based on local indicators like test-positivity rates and the number of cases per 100,000 residents.209 Meanwhile, other officials, including the Governor of Texas, openly embraced a more hands-off approach, arguing that personal responsibility, rather than government control, was the best tool for mitigating Covid-19.210 After being diagnosed with Covid-19 himself, President Trump advised the American people not to fear the virus and not to let it control their lives.211 He frequently held gatherings with government officials and members of the general public where people did not wear face coverings or maintain physical distance.212

100.  During the second and third waves, many commentators argued that schools should be last to close and first to reopen and that higher-risk, lower-priority settings like bars and dine-in restaurants should be closed to mitigate the spread of disease so that schools may stay open more safely.213 But in many jurisdictions, schools remained closed long after indoor dining and bars reopened.

101.  Business closures were frequently challenged in court on the grounds that they drew arbitrary classifications among types of businesses—based on risk assessments that singled out bars, indoor dining, or fitness centers or based on designation of high-priority businesses as ‘essential’.214 These challenges were largely unsuccessful. Several Covid-19 plaintiffs have argued that restrictions on their business operations amounted to uncompensated regulatory takings in violation of the Fifth Amendment (incorporated to the states via the Fourteenth Amendment) to the Constitution or similar provisions found in state constitutions. Thus far, the courts have uniformly rejected this argument. As a federal district court judge in New York held, restrictions on certain types of businesses ‘do not deny [business owners] all economically beneficial use of [their] property’ because they could alter their business operations to provide services deemed essential.215

102.  Some litigants also argued that compulsory business closures impermissibly interfered with constitutionally protected economic liberty. This argument was rejected by most courts as inconsistent with long-standing US Supreme Court precedents. Economic rights to use one’s property and earn one’s livelihood as one sees fit have been overwhelmingly rejected as a basis for applying strict scrutiny under the US Constitution in the modern era.216 As a matter of state constitutional law, however, some state courts have found them to be fundamental. For example, a state trial court in Ohio held that coronavirus emergency orders restricting business operations violated fundamental rights to ‘own and use property and earn a living’ recognized in the state constitution.217 In an outlier case, a federal district court judge in Pennsylvania held that the plaintiff’s economic liberty claims triggered strict scrutiny under the US Constitution.218

103.  Businesses connected to constitutionally protected fundamental rights brought some of the first Covid-19 civil liberties challenges. In the first opinion from a state’s highest court, the Supreme Court of Pennsylvania rejected a preliminary injunction request by the owner of a gun shop deemed nonessential and an individual seeking to buy a firearm, arguing the closure violated the right to bear arms.219 Swayed by the dissenting justices, however, the Governor quietly exempted gun shops.220 Firearms dealers and gun ranges have argued limits on their operation infringe upon the Second Amendment right to bear arms as well as state statutory provisions protecting gun rights.221

104.  Orders closing or imposing occupancy limits on places of worship were struck down by many courts for impermissibly infringing on the free exercise of religion protected by the First Amendment to the US Constitution and similar state protections. In the course of deciding these cases, the US Supreme Court’s jurisprudence on what constitutes discrimination on the basis of religion evolved from May 2020 to November 2020. This was due in part to the changing composition of the Court following the death of Justice Ruth Bader Ginsburg and the subsequent confirmation of Justice Amy Comey Barrett.

105.  Initially, the Supreme Court declined to block limits on houses of worship or religious gatherings so long as secular activities posing similar risks were subject to the same or more stringent restrictions. In May 2020, Chief Justice Roberts argued that the proper comparator was concerts and lecture halls.222 Writing in dissent, Justice Kavanaugh argued that the correct comparator was grocery stores and other shops that had been deemed essential and allowed to remain open. By November 2020, Kavanaugh’s position had garnered majority support and the Court blocked a New York order restricting capacity for houses of worship in areas designated ‘red’ or ‘orange’ zones based on test positivity and cases per 100,000 population. In April 2021, the Court expanded on this ruling, holding that ‘government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.’223 The Court elaborated on what would be required for restrictions on religious activities to withstand strict scrutiny: ‘narrow tailoring requires the government to show that measures less restrictive of the First Amendment activity could not address its interest in reducing the spread of COVID. Where the government permits other activities to proceed with precautions, it must show that the religious exercise at issue is more dangerous than those activities even when the same precautions are applied. Otherwise, precautions that suffice for other activities suffice for religious exercise too.’224

106.  For facilities that are not associated with religious purposes, firearms, or abortion, the constitutional issues raised by restrictions are different. The Fourteenth Amendment to the US Constitution guarantees equal protection and due process. These rights have been interpreted as barring the exercise of government authority in an arbitrary, capricious, or otherwise unreasonable manner. This prohibition applies even in situations where there the parties do not successfully assert a fundamental right or suspect classification.225 The rational basis standard of review applied to these challenges is easily met and few courts applying it have struck down public health measures for Covid-19.

107.  Early challenges called on courts to examine executive officials’ designation of businesses as essential or not. For example, a federal district court judge in New York rejected an equal protection challenge from an owner of a business deemed non-essential. ‘Given the seriousness of the COVID-19 pandemic’, the court found it ‘exceedingly unlikely that plaintiffs will be able to demonstrate that the [Governor’s orders] do not have a rational basis.’226 Consistent with other opinions in the early months of the pandemic, she did not offer further analysis.

108.  Matters became even more complicated as executive-branch officials lifted restrictions on some types of non-essential businesses while keeping others closed. A three-judge panel of a federal appellate court provided an extended discussion of what rational basis requires of state and local officials seeking to defend classifications between businesses whose operations are restricted and those allowed to conduct business as usual. The plaintiffs argued that the Michigan Governor’s order violated equal protection ‘by treating indoor fitness facilities (which remain completely closed) differently from bars, restaurants, and salons (which may open with restrictions).’227 The lower court had issued a preliminary injunction prohibiting enforcement of the order against the plaintiffs, based on a finding that the differential treatment of these facilities ‘failed even [the] deferential test’ applied to non-suspect classifications ‘because the Governor did not adequately explain during the hearing … her somewhat unique treatment of indoor fitness facilities, relying instead on conclusory statements that gyms are “dangerous”’.228 The court of appeals stayed the lower court’s injunction, reasoning that, ‘unlike exacting forms of scrutiny applied in other contexts, the Governor was not required to explain that choice at all, let alone exhaustively. Rather, the relevant standard merely requires “rational speculation” that offers “conceivable” support to the Governor’s order.’229

109.  In a rare exception, a federal district court judge in New York granted a preliminary injunction barring enforcement of an order prohibiting advertised and ticketed music performances at restaurants, while allowing music performances that are ‘incidental to the dining experience’, on the grounds that it was likely to be found arbitrary.230

110.  Orders closing schools were less frequently challenged in court, but in July 2021, a federal court of appeals ruled that a California order closing private schools impermissibly interfered with parents’ fundamental right ‘to control the education of their children at the private forum of their choice’ and was not narrowly tailored enough to withstand strict scrutiny.231 The same decision rejected the claims of public-school parents, on the grounds that the Constitution does not recognize an affirmative right to a state-provided education.232

5.  Physical distancing

111.  Concurrently with stay-at-home orders and restrictions on nonessential business operations, many state and local governments issued orders mandating physical distancing while engaged in essential activities, to the greatest extent practicable. For example, the earliest US stay at home orders—issued by local jurisdictions in the San Francisco Bay Area—directed that ‘[t]o the extent individuals are using shared or outdoor spaces, they must at all times as reasonably possible maintain social distancing of at least six feet from any other person when they are outside their residence.’233 When stay-at-home orders and business closures were lifted, most states maintained physical distancing requirements or recommendations for people from different households. In Texas, for example, the state health department continued to recommend that residents ‘stay six feet apart from others’ as of September 2021.234 In New York, guidance for office-based work released in June 2021 advised that employers ‘should ensure that a distance of at least six feet is maintained between all employees at all times in locations where vaccination status is unknown or in unvaccinated sections (eg, common areas), unless safety or the core activity requires a shorter distance.’235

6.  Use of face coverings and personal protective equipment

112.  On 2 April 2020, the CDC reversed its earlier guidance directing that masks should only be worn by health workers and people who are sick.236 Later, officials would explain to the public that the early guidance that masks should not be worn by people without symptoms was motivated by the need to conserve scarce supplies for health workers.237 But the change in guidance on who should wear masks may also have been influenced by evolving scientific understanding of the risk of asymptomatic or pre-symptomatic spread and new evidence regarding the effectiveness of masks.238

113.  Face covering orders were largely left to the discretion of state and local governments, with requirements varying widely from place to place. The majority of state governments and many local governments issued mandatory face mask requirements for several months at least. In New York, for example, the Governor issued an order on 15 April 2020 directing all individuals over age two to wear face coverings ‘when in a public place and unable to maintain, or when not maintaining, social distance.’239 In Texas, the Governor issued a similar order on 2 July 2020, but with an exemption for all children under the age of 10.240 In California, the governor announced that face coverings were mandatory statewide on 18 June 2020, but the directive did not appear in an official executive order.241

114.  As described in Part II.D above, face covering orders were lifted throughout most of the country in May 2021. Some jurisdictions technically continued to require masks for people who are unvaccinated, but the practical difficulties of verifying vaccination status in the absence of any national verification program made these requirements functionally hortatory. In June 2021, when the CDC reversed its guidance and recommended that everyone wear masks in indoor public spaces in areas with substantial or high transmission, a few states and many local jurisdictions reinstituted mask requirements, but many of the states that were hardest hit in the fourth wave during the summer and fall of 2021 did not institute any meaningful measures to mitigate the spread of Covid-19.242

115.  Face covering requirements were challenged in court on the grounds that they interfered with freedom of expression and free exercise of religion protected by the First Amendment to the Constitution, but these arguments were uniformly rejected by the courts. In an early case, the plaintiffs argued that being required to wear face masks amounted to compelled expressive conduct. Finding that ‘requirements for face coverings … reduce the chance that respiratory droplets containing the virus will infect others’, a federal district court judge in Maryland found that the order satisfied the Jacobson suspension standard of review. 243 In a later case, a federal district court in Minnesota held that ‘even if wearing or not wearing a face covering was inherently expressive, [the Governor’s face mask order] is clearly constitutional, whether analyzed under [an intermediate scrutiny standard that would ordinarily apply to some types of regulations of expressive conduct] or Jacobson.’244 In doing so, the court found that ‘federal health officials recommend face coverings as an effective way to slow the spread of COVID-19, and this recommendation finds support in recent studies.’245

7.  Isolation of infected individuals and quarantine of individuals suspected of infection

116.  Federal and state statutes and regulations authorize compulsory isolation and quarantine. For example, California’s Health and Safety Code provides that the state health department ‘may from time to time adopt and enforce regulations requiring strict or modified isolation, or quarantine, for any of the contagious, infectious, or communicable diseases, if in the opinion of the department the action is necessary for the protection of the public health.’246 When the US State Department repatriated hundreds of Americans from Wuhan,247 they were subjected to the first federal quarantine order issued in more than 50 years.248 They were held in government-provided facilities while being monitored for symptoms and tested for infection.249 These containment efforts were ultimately unsuccessful.

117.  Beyond the earliest days of the pandemic, relying on compulsory isolation and quarantine provisions proved impractical.250 In New York, some local health departments indicated that they would issue isolation and quarantine orders to individuals identified through testing and contact tracing efforts, with daily follow-up and monitoring calls from the department.251 In California, some local governments announced in early March 2020 that they would stop recommending isolation or quarantine. As the Sacramento County health department head put it, ‘Once you get a certain number of cases, it’s hard to continue to contact-trace back the way you tried originally.’252 Most federal, state, and local authorities continued to rely on voluntary self-quarantine and self-isolation, exhorting residents to abide by public health recommendations. In many instances, as in Texas, for example, authorities noted that ‘[f]ailure to abide by such direction may result in involuntary quarantine or isolation’, but compulsory orders were rarely used.253

8.  Testing, treatment, and vaccination

118.  In an effort to encourage self-isolation, many state and local health departments issued recommendations or orders directing people to stay home if they had symptoms characteristic of Covid-19 infection.254 But guidance focused on people who were obviously symptomatic was inadequate to achieve containment.255 Efforts to ensure access to testing were slow to start and were quickly outpaced by widespread community transmission, rendering containment efforts futile.

119.  Crucially, the White House plan to guide state decisions about reopening businesses left states responsible for securing the infrastructure need to safely lift restrictions on high-risk settings. The guidelines defined testing, tracing, and disease surveillance as ‘core state preparedness responsibilities.’256 President Trump repeatedly expressed skepticism regarding the wisdom of ramping up testing, arguing that ‘by doing all of this testing, we make ourselves look bad.’257 Later, when Congress considered legislation to provide federal funding for these needs, the President argued funding for testing should be zeroed out.258 Congressional negotiations repeatedly broke down and no new legislation was passed.259

120.  The US has successfully used procurement contracts and government coordination of supply chains to obtain enough doses to vaccinate the entire US population against Covid-19 within a remarkably short timeframe. Although procurement has been quite successful, vaccine distribution has been deeply inequitable and slower than would be ideal. Vaccine hesitancy remains a concern, but access has been the primary focus for regulators. State and local governments continued to exercise primary authority over eligibility criteria and distribution plans. This devolutionary approach resulted in positive innovations in some states, such as Rhode Island, which pioneered place-based eligibility whereby all adult residents of hard-hit areas—or areas identified via the CDC’s social vulnerability index (SVI) as particularly vulnerable to public health emergencies or natural disasters—were prioritized for early vaccination. In other areas, however, conflicting eligibility criteria and distribution plans caused confusion and gross inequities for members of racial and ethnic minority groups. In many states, governors rushed to open up eligibility to groups that were far larger than supply could accommodate, long before vaccination had been offered to people who are particularly vulnerable due to age, high-risk medical conditions, workplace exposure, or crowded residential conditions.

121.  The CDC’s Advisory Committee on Immunization Practices (ACIP) created a system of phases for distribution of vaccines.260 ACIP’s phases prioritized high-risk health care workers and residents and staff of nursing homes first in Phase 1A.261 The next phase, 1B, prioritized those aged 75 and older and essential frontline workers who work in meat processing plants, food and agricultural jobs, grocery stores, prisons, transit and transport, manufacturing, and education, as well as postal, police, fire, and emergency medical services (EMS) workers. The next phase, 1C, included those aged 65 to 74, workers in other essential fields including those in media, construction, and food service, and people aged 16 to 64 who have high risk factors for serious infection. Although the ACIP system was not mandatory, the CDC did require each state to create a vaccine allocation plan before receiving federally procured vaccine doses.262 State plans varied greatly and many failed to ensure that members of racial and ethnic minority groups had access to vaccines.263

122.  In the South, a majority of vaccine allocation sites were situated in predominantly white neighborhoods, and a study of counties in Pittsburgh found that Black residents would need to travel farther than white residents to get a vaccine.264 Some states have even denied undocumented immigrants access to vaccines,265 or required identification in order to be vaccinated.266 Additionally, some states have adopted age-based cut offs for vaccine allocation, which disproportionately harm racial and ethnic minorities who tend to die younger than whites. For example, in Alabama, the vaccine was initially allocated to those who were aged 75 years or older. However, at least 83% of Alabama’s Black population did not meet this age requirement for the vaccine.267 More specifically, ‘in 47 of the state’s 67 counties, life expectancy among Black people is less than 75 years old.’268

123.  Some states tried to address inequities in their vaccine allocation plans by including SVI in prioritization criteria, but only California, Indiana, Louisiana, Michigan, North Dakota, Ohio, and Tennessee noted that they planned to prioritize those most vulnerable using SVI.269 For example, Tennessee planned to reserve 10% of its allocation for high SVI areas. Some states that did not mention SVI still tried to identify and ensure vulnerable groups gained access to the vaccine. Massachusetts allocated an additional 20% of vaccines ‘to communities that have experienced disproportionate Covid burden and high social vulnerability.’270 Similarly, New Hampshire planned to ‘allocate 10% of available vaccine doses for disproportionately impacted populations.’271 In their state plans, Michigan and South Dakota explicitly mentioned that they would work with Native American tribes to equitably distribute the vaccine, while Montana and Utah prioritized Native Americans and other racial ethnic groups at elevated risk of Covid-19 complications in Phase 1B and Phase 1C, respectively.272

124.  Yet, some states, like Texas, prevented local officials from affirmatively addressing inequities in the allocation of vaccine doses. For example, ‘Dallas County’s rollout plans for the vaccine included an inoculation hub in a neighborhood that is largely African-American and Latino. But when the sign-up website went live, the link speedily circulated throughout white, wealthier districts in North Dallas.’273 When county officials tried to hold the doses for racial and ethnic minorities residing in these neighborhoods, the state threatened to withhold doses from the county.274 Thus, the county decided not to hold doses for racial and ethnic minorities. In response, President Biden established a federally sponsored vaccination site to serve vulnerable areas in Dallas. Nevertheless, in March 2021, vaccine rates in Texas were still low, particularly among racial and ethnic minorities.275

125.  Although public health laws in several states specifically authorize compulsory testing, treatment, and vaccination, such requirements have not yet been widely imposed in response to Covid-19. Private organizations, such as universities, have imposed testing requirements as a condition of attendance or participation, but government mandates have not been widely adopted. An early exception to the general trend of voluntary vaccination was being challenged in court as of March 2021. The county of Dona Ana in the state of New Mexico directed county employees to accept vaccination or face termination.276

9.  Contact tracing procedures

126.  Compliance with contact tracing procedures has been largely voluntary, though in a few instances local authorities have issued compulsory orders or subpoenas to those who have refused to participate.277 In some jurisdictions, executive orders directed restaurants and other facilities to collect contact information for the purposes of facilitating contact tracing efforts. In New York, for example, guidance for food service establishments directed that restaurants collect the name and contact information for one person from each party participating in indoor dining.278 For the most part, however, contact tracing was too spotty and superficial for data-gathering efforts to be of much use.

127.  Few states conducted contact tracing on their own.279 Most states partnered with private companies or with the CDC, National Guard, or universities. In California, the state partnered with universities and the University of California San Diego Health hospital system to provide a call center and other supports for contact tracing.280 In New York, the state worked with several private partners to create a New York State Contact Tracing Program.281 The state of Texas partnered with private companies and state universities to increase capacity to contact trace and increase staffing.282 However, nationwide contact tracing was hampered in large part by the failure to support widespread access to testing, which was made worse as cases spiked, increasing demand for testing. For example, the state of Missouri contracted with over 40 private companies, but in December 2020, told state government employees and residents that they would not be contacted by county health officials or vendors if they had been exposed to someone with the virus.283 Instead, it was up to those infected to inform any contacts who they had potentially exposed.

10.  Measures in long-term care facilities or homes for the elderly, restrictions on visitors, etc

128.  Most states, including New York, California, and Texas, implemented orders prohibiting visitors to long-term care facilities and other homes for the elderly. In Texas, for example, a 19 March 2020 order prohibited visitors at nursing homes, retirement homes, and other long-term care facilities unless the visit was to provide critical assistance.284 Some states implemented guidelines for infection control, but in most cases resources were insufficient to implement these procedures successfully (see Part VI.F below). In California, for example, the governor restricted visitors to nursing homes and prioritized facilities for limited testing and PPE supplies in April 2020.285

129.  In New York, Governor Cuomo was criticized for a 25 March 2020 advisory calling on nursing homes to accept medically stable patients who had or were suspected of having Covid-19 and prohibiting them from requiring patients to be tested for the virus before admission.286 The order was intended to free up capacity at acute-care hospitals but may have contributed to spread within nursing homes.

130.  In several states, when stay-at-home orders or advisories for the general public were lifted, governors issued orders directing people over age 65 to stay at home and not receive guests, except for approved purposes. In Texas, for example, when cases began to surge following reopening, the Governor issued an order directing people over age 65 to shield themselves by continuing to stay at home.287 No such orders were in operation in New York or California.

B.  Enforcement and Compliance

1.  Enforcement

131.  Police forces and health inspectors are employed primarily at the state and local levels. Domestic use of the federal military is constrained by statute. The Posse Comitatus Act of 1878 prohibits the use of military forces for ‘performing domestic law enforcement activities.’288 An exception is provided by the Insurrection Act of 1807, which permits the president to deploy military forces in response to domestic rebellion.289

132.  In the early days of US outbreaks, public health directives were typically accompanied by threats of harsh penalties. The first shelter-in-place orders issued in the US (in the San Francisco Bay Area of California) indicated violations would be misdemeanor offenses punishable by fine, imprisonment, or both.290 Later, guidance issued to the San Francisco Police Department indicated that police may educate, admonish, seek voluntary compliance, and use enforcement for violations of the shelter-in-place order against businesses and individuals.291

133.  In many states, particularly during the second and third waves, local law enforcement officials announced that they would not direct their police forces to enforce public health measures. Many state governors expressly assured the public that public health measures would not be enforced against individuals using criminal sanctions. In Texas, for example, the governor’s July 2020 mask order specified that law enforcement officers ‘can and should’ enforce the order, provided that ‘no law enforcement or other official may detain, arrest, or confine in jail any person for a violation.’292 In jurisdictions that relied on criminal sanctions, enforcement actions disproportionately targeted Black people and other non-white populations. In New York, for example, discriminatory enforcement activities were widely reported by the media.293

134.  In some cases, courts did not reach the merits of challenges to stay-at-home orders because they found it insufficiently likely that the order would be enforced. For example, a federal district court judge in Washington denied a motion for a temporary restraining order to a plaintiff who had previously protested the stay-at-home order and planned to do so again on the grounds that she had ‘fail[ed] to establish a realistic threat of any criminal enforcement action as a result of her course of conduct.’294 In Virginia, a federal district court judge denied a motion for injunction pending appeal ‘because there is no evidence that the Governor himself enforced, threatened to enforce, or advised other agencies to enforce his Orders against Plaintiff or any other individual or entity.’295

2.  Compliance

135.  Compliance with public health directives varied widely from place to place and time to time throughout the Covid-19 pandemic in the US. The directives were highly politicized by President Trump, who openly opposed public health measures implemented by many state and local leaders, as described in Part III.E. above.

136.  Empirical studies have found a correlation between the issuance of stay at home orders and reductions in mobility in the US, measured using cell phone location data during the first several weeks of the Covid-19 pandemic.296 Mobility increased nationwide shortly after the first US state (Alaska) lifted its mandatory stay-at-home order.297 This effect was seen even though most states still had stay-at-home orders in effect. Mobility reductions in response to Covid-19 mitigation orders varied quite a lot from state to state and from county to county within each state.298 One group of researchers found that mobility reductions were highest in states that imposed the earliest stay at home orders. During the week beginning 23 March 2020, in the seven states that had already ordered residents to stay at home, reductions in mobility were greater than in states that had not yet done so.299 The impact of Covid-19 mitigation orders on mobility in the US was short-lived (only lasting several weeks) relative to the long duration of widespread community transmission, which lasted many months in most parts of the country.

Prof. Lindsay F. Wiley, American University Washington College of Law

Ruqaiijah Yearby, St. Louis University School of Law

Andrew Hammond, University of Florida Levin College of Law

Footnotes:

2  R Haffajee and M Mello, ‘Thinking Globally, Acting Locally—The U.S. Response to Covid-19’ (2020) 382 New England Journal of Medicine e75.

3  Murphy v NCAA 138 S. Ct. 1461 (2017) (US Supreme Court).

4  LF Wiley, ‘Federalism in Pandemic Prevention and Response’ in S Burris, S de Guia, and L Gable (et al) (eds), Assessing Legal Responses to COVID-19 Policy Playbook II (2021).

5  Hamdi v Rumsfeld 542 U.S. 507 (2004) (US Supreme Court).

6  LF Wiley and SI Vladeck, ‘Coronavirus, Civil Liberties, and the Courts: The Case Against “Suspending” Judicial Review’ (2020) 133 Harvard L Review Forum 179 (2020).

7  Jacobson v Massachusetts 197 U.S. 11 (1905) (US Supreme Court).

8  Roman Catholic Diocese of Brooklyn v Cuomo 141 S.Ct. 63 (2020) (US Supreme Court).

10  42 US Code s 247d (1944).

11  42 US Code s 264 (1944).

13  CDC, No Sail Order and Suspension of Further Embarkation (85 Federal Register 16628) (24 March 2020); CDC, Framework for Conditional Sailing and Initial Phase COVID-19 Testing Requirements for Protection of Crew (85 Federal Register 70153) (4 November 2020).

15  CDC, No Sail Order and Suspension of Further Embarkation (85 Federal Register 16628 (24 March 2020); CDC, Framework for Conditional Sailing and Initial Phase COVID-19 Testing Requirements for Protection of Crew (85 Federal Register 70153) (3 November 2020).

16  CDC, Requirement for Persons To Wear Masks While on Conveyances and at Transportation Hubs (86 Federal Register 8025) (3 February 2021).

17  Alabama Association of Realtors v Department of Health and Human Services 594 US (2021) (United States Supreme Court); Florida v Becerra No. 21-cv-839 (18 June 2021) (District Court Middle District of Florida Tampa Division).

18  LF Wiley, ‘Democracy and Delegation in a Public Health Emergency: Statutory Interpretation and Separation of Powers’, American Constitution Society Issue Brief (December 2020).

19  PS Roberts, Disasters and the American State (CUP 2013) 127–145.

21  Health & Human Services Secretary Alex Azar, Determination that a Public Health Emergency Exists (31 January 2020).

22  42 US Code s 247d (1944).

23  US Department of Health and Human Services, Public Health Emergency Declaration (last reviewed 26 November 2019).

24  LO Gostin, JG Hodge Jr. and LF Wiley, ‘Presidential Powers and Response to COVID-19’ 323 Journal of the American Medical Association 1547 (18 March 2020).

28  Federal Emergency Management Agency, ‘COVID-19 Disaster Declarations’ (updated 12 March 2020).

30  New York Executive Order 202 (7 March 2020).

34  New York Senate Bill S8450C (23 December 2020).

41  California Executive Order N-33-20 (19 March 2020).

46  Texas Governor Greg Abbott, COVID-19 Disaster Proclamation (13 March 2020).

49  Texas Executive Order GA 34 (1 March 2021).

51  NM Davidson and K Haddow, ‘State Preemption and Local Responses in the Pandemic’, American Constitution Society Expert Forum (22 June 2020).

52  See, eg, Texas Executive Order GA 15 (17 April 2020); Texas Executive Order GA 25 (5 April 2021).

56  See, eg, New York Executive Order 202.5 (18 March 2020).

61  Texas Commissioner of the Department of State Health Services John W. Hellerstedt, Declaration of a Public Health Disaster in the State of Texas (19 March 2020).

62  42 US Code s 247d (1944).

63  National Conference of State Legislators, ‘Legislative Oversight of Emergency Executive Powers’ (updated 13 April 2021).

66  New York Senate Bill S5357 (7 March 2021).

67  DA Lieb, ‘State Lawmakers Are Pushing to Curb Governors’ Virus Powers’ AP (Online, 28 January 2021).

68  Ohio Senate Bill 22 (23 June 2021).

69  LF Wiley, ‘Public Health Emergency Reform is Coming—These Six Principles Should Guide It’, Health Affairs Blog (12 January 2021).

70  Wisconsin Legislature v Palm 942 N.W.2d 900 (2020) (Wisconsin Supreme Court).

71  Wisconsin Legislature v Palm 942 N.W.2d 900 916 (2020) (Wisconsin Supreme Court); LF Wiley, ‘Wisconsin’s “Safer at Home” Order Isn’t a Quarantine—But that Doesn’t Mean it Isn’t Necessary to Control the Spread of Coronavirus’, American Constitution Society Expert Forum (7 May 2020).

72  Wisconsin Legislature v Palm 942 N.W.2d 900 916 (2020) (Wisconsin Supreme Court). For the view that the court was wrong to interpret the Governor’s order as a quarantine order that is subject to the constraints imposed by the quarantine statute, see L Wiley, ‘Wisconsin’s “Safer at Home” Order Isn’t a Quarantine—But that Doesn’t Mean it Isn’t Necessary to Control the Spread of Coronavirus’, Expert Forum: Law and Policy Analysis (7 May 2020).

76  Wisconsin Legislature v Palm 942 N.W.2d 900 917 (2020) (Wisconsin Supreme Court).

77  Wisconsin Legislature v Palm 942 N.W.2d 900 917 (2020) (Wisconsin Supreme Court).

78  In re Certified Questions from United States District Court 2020 WL 5877599 (2020) (Michigan Supreme Court).

79  Lochner v New York 198 U.S. 45 (1905) (United States Supreme Court).

80  Michigan House of Representatives and Michigan Senate v Governor 949 N.W.2d 276 (2020) (Michigan Supreme Court).

81  Michigan House of Representatives and Michigan Senate v Governor 949 N.W.2d 276 (2020) (Michigan Supreme Court).

82  Michigan House of Representatives and Michigan Senate v Governor 949 N.W.2d 276 (2020) (Michigan Supreme Court).

83  Michigan Department of Health and Human Services, Michigan Emergency Order Under MCL 333.2253—Gathering Prohibition and Mask Order (5 October 2020); Wisconsin Department of Health Services, Wisconsin Emergency Order 3—Limiting Public Gatherings (6 October 2020).

85  Michigan Department of Health and Human Services, Michigan Emergency Order Under MCL 333.2253—Gathering Prohibition and Mask Order (5 October 2020).

87  Fabick v Evers (Wisconsin Supreme Court) (31 March 2021).

88  US House of Representatives Committee on Rules, Office of the Majority, Majority Staff Report Examining Voting Operations During the COVID-19 Pandemic (23 March 2020).

89  H. Res. 965, 116th Congress (15 May 2020).

90  McCarthy v Pelosi 480 F. Supp.3d 28 (D.D.C. 2020), aff’d Civ. No. 20-5240 (D.C. Cir. 20 July 2021).

91  National Conference of State Legislatures, ‘Legislative Session Length’ (updated 1 July 2021).

92  National Conference of State Legislatures, ‘COVID-19: State Actions Related to Legislative Operations’ (updated 30 March 2021).

93  California Constitution, art IV.

95  California SR 86 (2020).

96  California ACA 25 (2020).

97  California HR 100 (2020).

99  New York AR 854 (2020); New York SR3108 (2020).

101  National Conference of State Legislatures, ‘COVID-19: State Actions Related to Legislative Operations’ (updated 30 March 2021).

103  JE Carroll, ‘Pretrial Detention in the Time of COVID-19’ (2020) 115 Northwestern University L Review Online 59.

104  A Bannon and J Adelstein, The Impact of Video Proceedings on Fairness and Access to Justice in Court (Brennan Center for Justice 2020).

105  Justia, ‘Court Operations During COVID-19: 50-State Resources’ (updated July 2021).

106  Justia, ‘Court Operations During COVID-19: 50-State Resources’ (updated July 2021).

107  Pandemic Continuity of Operations Working Group, Pandemic Continuity of Operations Resource Guide (2020).

108  Justia, ‘Court Operations During COVID-19: 50-State Resources’ (updated July 2021)

109  See, eg, Supreme Court of Texas, Fortieth Emergency Order Regarding the COVID-19 State of Disaster (19 July 2021).

110  R Briffault, ‘COVID-19 and the Law: Elections’ in K Pistor (ed), Law in the Time of COVID-19 (Columbia Law School 2020).

111  Republican National Committee v Democratic National Committee 140 S.Ct. 1205 (2020) (US Supreme Court).

112  SCOTUSblog, ‘2020 Election Litigation Tracker’ (2020).

113  S Tan, Y Shin, and D Rindler, ‘How One of America’s Ugliest Days Unraveled Inside and Outside the Capitol’ Washington Post (Online, 9 January 2021).

114  W Cai et al, ‘Trump’s Second Impeachment: How the Senate Voted’ New York Times (Online, 13 February 2021).

116  CDC, ‘ACIP Charter’ (updated 14 July 2020).

117  See, eg, 42 US Code s 264 (1944); Michigan Code of Laws 333.2253 (2006).

119  CDC, ‘CDC Organization’ (reviewed 7 May 2021); Dorit Rubenstein Reiss, ‘Institutionalizing the Centers for Disease Control and Prevntion’s Independence’ (2020) 12 ConLawNOW 107.

120  LF Wiley, ‘Public Health Law and Science in the Community Mitigation Strategy for Covid-19’ (2019) 7(1) Law and Biosciences lsaa019.

126  The White House, 15 Days to Slow the Spread (16 March 2020).

127  The White House, 15 Days to Slow the Spread (16 March 2020).

128  The White House, 15 Days to Slow the Spread (16 March 2020).

129  E Kilgore, ‘Trump Already Losing Patience With Being Semi-Responsible on Coronavirus’ New York Magazine (Online, 23 March 2020).

130  White House, ‘Guidelines: Opening Up America Again’ (2020).

131  C Mauger and B LeBlanc, ‘Trump Tweets “Liberate” Michigan, Two Other States with Dem Governors’ Detroit News (Online, 17 April 2020).

132 School Reopening Debate Tests Biden’s Ties with Teachers Unions’ PBS News Hour (Online, 5 February 2021).

133  I Stanley-Becker et al, ‘CDC’s Mask Guidance Spurs Confusion and Criticism, as Well as Celebration’ Washington Post (Online, 14 May 2021).

135  J Achenbach et al, ‘CDC Reversal on Indoor Masking Prompts Experts to Ask, “Where’s the Data?”’ Washington Post (Online, 28 July 2021).

136  S LaFraniere, ‘Biden Floats Faster Access to Booster Shots amid Spread of Variant’ New York Times (Online, 27 August 2021, updated 24 September 2021).

137  A Mandavilli and B Mueller, ‘C.D.C. Chief Overrules Agency Panel and Recommends Pfizer-BioNTech Boosters for Workers at Risk’ New York Times (Online, 24 September 2021).

138  California State Public Health Officer, Essential Critical Infrastructure Workers (28 April 2020).

139  Department of Justice, ‘Guidance for Agency FOIA Administration in Light of COVID-19 Impacts’ (28 May 2020).

140  N Jones, ‘Public Records Requests Fall Victim to the Coronavirus Pandemic’ Washington Post (Online, 1 October 2020).

141  CS Houk et al, ‘The Ombudsman in Federal Agencies’ (2016).

142  See, eg, City & County of San Francisco Administrative Order No. C19–07 (16 March 2020); JP Sulek, ‘Meet the Doctor Who Ordered the Bay Area’s Coronavirus Lockdown, the First in the U.S.Mercury News (San Jose, California, 29 March 2020).

143  California Executive Order N-33-20 (19 March 2020).

144  S Mervosh et al, ‘See Which States and Cities Have Told Residents to Stay at Home’ New York Times (Online, updated 20 April 2020).

145  New York Executive Order No 202.8 (20 March 2020).

146  S Mervosh et al, ‘See Which States and Cities Have Told Residents to Stay at Home’ New York Times (Online, updated 20 April 2020).

148  Texas Executive Order GA 14 (31 March 2021).

149  Husch Blackwell, ‘State-by-State COVID-19 Guidance: Texas’ (updated 8 April 2021).

150  The White House, The President’s Coronavirus Guidelines for America: 30 Days to Slow the Spread (30 March 2020) (on file with author).

151  LF Wiley, ‘Democratizing the Law of Social Distancing’ (2020) 19 Yale Journal of Health Policy, Law, and Ethics 50, 91 (quoting Hawse v Page 2020 WL 2322999 (2020) (US District Court for the Eastern District of Missouri)).

152  Roman Catholic Diocese of Brooklyn v Cuomo 141 S.Ct. 63 (2020) (US Supreme Court).

153  Henry v DeSantis 461 F. Supp. 3d 1244 (2020) (US District Court for the Southern District of Florida), [1250], [1254–55].

154  County of Butler v Wolf 486 F.Supp.3d 883 (2020) (US District Court for the Western District of Pennsylvania), stay pending appeal granted by 2020 WL 5868393 (2020) (US Court of Appeals for the Third Circuit), appeal dismissed as moot by 8 F.4th 226 (2021) (US Court of Appeals for the Third Circuit).

155  McGhee v City of Flagstaff 2020 WL 2308479 (2020) (US District Court for the District of Arizona).

156  Lawrence v Colorado 455 F.Supp.3d 1036 1076 (2020) (US District Court for the District of Colorado).

157  Best Supplement Guide, LLC v Newsom 2020 WL 2615022 (2020) (US District Court for the Eastern District of California).

158  Henry v DeSantis 461 F. Supp. 3d 1244 (2020) (US District Court for the Southern District of Florida), [1250], [1254–55] (quoting City of Dallas v Stanglin 490 U.S. 19, 25 (1989) (United States Supreme Court).

161  RD Silverman, ‘Contact Tracing, Intrastate and Interstate Quarantine, and Isolation’ in S Burris, S de Guia, and L Gable (et al) (eds), Assessing Legal Responses to COVID-19 Policy Playbook II (2021).

162  Texas Executive Order GA-11 (26 March 2020).

163  Texas Executive Order GA-12 (29 March 2020).

164  New York Executive Order 205 (24 June 2020).

165  Bayley’s Campground Inc. v Mills 463 F.Supp.3d 22 (2020) (US District Court for the District of Maine).

166  Roberts v Neace 457 F.Supp.3d 595 (2020) (US District Court for the District of Kentucky).

167  County of Butler v Wolf 486 F.Supp.3d 883 (2020) (US District Court for the Western District of Pennsylvania), stay pending appeal granted by 2020 WL 5868393 (2020) (US Court of Appeals for the Third Circuit), appeal dismissed as moot by 8 F.4th 226 (2021) (US Court of Appeals for the Third Circuit).

168  County of Butler v Wolf 486 F.Supp.3d 883 (2020) (US District Court for the Western District of Pennsylvania), stay pending appeal granted by 2020 WL 5868393 (2020) (US Court of Appeals for the Third Circuit), appeal dismissed as moot by 8 F.4th 226 (2021) (US Court of Appeals for the Third Circuit).

169  New York Executive Order 202.1 (12 March 2020).

170  New York Executive Order 202.3 (16 March 2020).

171  New York Executive Order 202.10 (23 March 2020).

172  R Procter, ‘Remember When? Timeline Marks Key Events in California’s Year-Long Pandemic Grind’ Cal Matters (Online, 4 March 2021).

174  R Procter, ‘Remember When? Timeline Marks Key Events in California’s Year-Long Pandemic Grind’ Cal Matters (Online, 4 March 2021).

175  R Procter, ‘Remember When? Timeline Marks Key Events in California’s Year-Long Pandemic Grind’ Cal Matters (Online, 4 March 2021).

177  Cuomo, New York State Set Up Cluster Zones for COVID-19 Hotspots’ WGRZ (Online, 6 October 2020).

179  Covid19.ca.gov, ‘Safely Reopening California’ (updated 26 July 2021).

180  See, eg, El Paso County Judge Order No. 6 (21 March 2020); Travis County Judge Order No. 2020-04 (21 March 2020); Austin Mayor Order No. 20200321-006 (21 March 2020).

181  Texas Executive Order GA 14 (31 March 2021).

182  El Paso Mayor, First Amendment to Local Emergency Directive (1 April 2020).

183  Texas Executive Order GA 26 (3 June 2020).

184  Texas Executive Order GA 26 (3 June 2020).

186  Texas Executive Order GA 28 (26 June 2020).

188  Lubbock County Proclamation (6 July 2020).

189  M Dotray, ‘Lubbock County Judge Says Gathering Restrictions from Governor are Impossible to Manage’ Lubbock Avalanche-Journal (Online, 6 July 2020)

190  Ramsek v Beshear 468 F.Supp.3d 904 (2020) (US District Court for the Eastern District of Kentucky).

191  Ramsek v Beshear 468 F.Supp.3d 904 (2020) (US District Court for the Eastern District of Kentucky).

192  Ramsek v Beshear 468 F.Supp.3d 904 (2020) (US District Court for the Eastern District of Kentucky).

193  Geller v de Blasio 2020 WL 2520711 (S.D.N.Y. 2020) (US District Court for the Southern District of New York).

194  Ibid.

195  Tandon v Newsom 593 U.S. (2021).

196  New York Executive Order 202.1 (12 March 2020).

197  New York Executive Order 202.3 (16 March 2020).

198  New York Executive Order 202.4 (17 March 2020).

199  New York Executive Order 202.6 (18 March 2020).

200  New York Executive Order 202.7 (19 March 2020).

201  New York Executive Order 202.8 (20 March 2020).

202  California Executive Order N-33-20 (19 March 2020).

203  California State Public Health Officer, Essential Critical Infrastructure Workers (28 April 2020).

204  R Cano and L Rosenhall, ‘Newsom: Coronavirus Likely to Close California Schools for Rest of the Year’ Cal Matters (Online, 17 March 2020).

205  Texas Executive Order GA 14 (31 March 2021).

206  See, eg, New York Executive Order 202.38 (6 June 2020).

207  Texas Executive Order GA 15 (17 April 2020).

208  See, eg, Texas Executive Order GA 32 (7 October 2020).

209  See, eg, New York Executive Order 202.68 (6 October 2020).

211  G Kolata and RC Rabin, ‘“Don’t be Afraid of Covid,” Trump Says, Undermining Public Health Messages’ New York Times (Online, 8 October 2020).

213  A North, ‘Why Restaurants Are Open and Schools Are Closed’ Vox (Online, 18 November 2020).

214  Rock House Fitness, Inc. v Acton 2020 WL 3105522 (2020) (Court of Common Please, Lake County, Ohio).

215  See, eg, McCarthy v Cuomo 2020 WL 3286530 (2020) (US District Court for the Eastern District of New York).

216  See, eg, SH3 Health Consulting, LLC v Page 459 F.Supp.3d 1212 (2020) (US District Court for the Eastern District of Missouri), [1226].

217  Rock House Fitness, Inc. v Acton, 2020 WL 3105522 (2020) (Court of Common Please, Lake County, Ohio).

218  County of Butler v Wolf 486 F.Supp.3d 883 (2020) (US District Court for the Western District of Pennsylvania), stay pending appeal granted by 2020 WL 5868393 (2020) (US Court of Appeals for the Third Circuit), appeal dismissed as moot by 8 F.4th 226 (2021) (US Court of Appeals for the Third Circuit).

219  Civil Rights Defense Firm, P.C. v Wolf 226 A.3d 569 (2020) (Supreme Court of Pennsylvania).

220  M Levy, M Rubinkam, and M Scolforo, ‘Wolf Reopens Gun Shops, Orders More Residents to Stay Home’ AP News (Online, 24 March 2020).

221  See, eg, Lynchburg Range & Training, LLC v Northam 455 F. Supp. 3d 238 (2020) (US District Court for the Western District of Virginia).

222  South Bay United Pentecostal Church v Newsom 140 S.Ct. 1613 (2020) (US Supreme Court).

223  Tandon v Newsom 593 U.S. (2021) (US Supreme Court) (emphasis in original).

224  Tandon v Newsom 593 U.S. (2021) (US Supreme Court).

225  FCC v Beach Communications, Inc. 508 U.S. 307 (1993) (US Supreme Court), [313].

226  McCarthy v Cuomo 2020 WL 3286530 (2020) (US District Court for the Eastern District of New York).

227  League of Independent Fitness Facilities and Trainers, Inc. v Whitmer 2020 WL 3468281 (2020) (US Court of Appeals for the Sixth Circuit), granting stay of lower court injunction.

228  League of Independent Fitness Facilities and Trainers, Inc. v Whitmer 2020 WL 3468281 (2020) (US Court of Appeals for the Sixth Circuit), granting stay of lower court injunction (internal citations omitted).

229  League of Independent Fitness Facilities and Trainers, Inc. v Whitmer 2020 WL 3468281 (2020) (US Court of Appeals for the Sixth Circuit), granting stay of lower court injunction.

230  Hund v Cuomo 108 Fed.R.Serv.3d 733 (2020) (US District Court for the Western District of New York).

231  Brach v Newsom No. 20-56291 (23 July 2021) (United States Court of Appeals for the Ninth Circuit).

232  Brach v Newsom No. 20-56291 (23 July 2021) (United States Court of Appeals for the Ninth Circuit).

234  Texas Department of State Health Services, ‘Coronavirus Disease 2019 (COVID-19)’ (updated 24 September 2021).

236  C Dwyer and A Aubry, ‘CDC Now Recommends Americans Consider Wearing Cloth Face Coverings in Public’ NPR (Online, 3 April 2020).

237  G Panetta, ‘Facui Says He Doesn’t Regret Telling Americans Not to Wear Masks at the Beginning of the Pandemic’ Business Insider (Online, 16 July 2020).

238  S Chamberlain, ‘Fauci Emails Show His Flip-Flopping on Wearing Masks to Fight Covid’ New York Post (Online, 3 June 2021).

239  New York Executive Order 202.17 (15 April 2020).

240  Texas Executive Order GA 29 (2 July 2020).

241  P Willon et al, ‘Californians Must Wear Face Masks in Public Under Coronavirus Order Issued By Newsom’ Los Angeles Times (18 June 2020).

242  See, eg P McCausland, ‘Idaho Declares Statewide Hospital Resource Crisis Amid Covid Surge’ NBC News (Online, 16 September 2021).

243  Antietam Battlefield KOA v Hogan 461 F.Supp.3d 214 (2020) (US District Court for the District of Maryland).

244  Minnesota Voters Alliance v Walz 2020 WL 5869425 (2020) (US District Court for the District of Minnesota).

245  Minnesota Voters Alliance v Walz 2020 WL 5869425 (2020) (US District Court for the District of Minnesota).

250  RD Silverman, ‘Contact Tracing, Intrastate and Interstate Quarantine, and Isolation’ in S Burris, S de Guia, and L Gable (et al) (eds) Assessing Legal Responses to COVID-19 Policy Playbook II (2021).

251  See, eg, Essex County Health Department, ‘Testing, Travel Advisory, Isolation, Quarantine & More’ (accessed 29 July 2020).

252  C Anderson, ‘Coronavirus Exposure No Longer Means Automatic Isolation in Sacramento, Yolo, Placer’ Sacramento Bee (Online, 9 March 2020).

254  See, eg, King County, Washington, ‘Local Health Officials Announce New Recommendations to Reduce Risk of Spread of COVID-19’ (4 March 2020).

255  M Apuzzo, S Gebrekidan, and DD Kirkpatrick, ‘How the World Missed COVID-19’s Silent Spread’ New York Times (Online, 27 June 2020).

256  White House, ‘Guidelines: Opening Up America Again’ (2020).

258  E Werner and J Stein, ‘Trump Administration Pushing to Block New Money for Testing, Tracing and CDC in Upcoming Coronavirus Relief Bill’ Washington Post (Online, 18 July 2020).

259  E Werner et al, ‘Coronavirus Relief Talks Collapse on Capitol Hill as Trump Readies Executive Actions’ Washington Post (Online, 7 August 2020).

260  S Oliver, ACIP COVID-19 Vaccines Work Group, Overview of Vaccine Equity and Prioritization Frameworks (22 September 2020).

261  K Dooling, ACIP COVID-19 Vaccines Work Group, Phased Allocation of COVID-19 Vaccines (20 December 2020).

262  R Yearby and S Mohapatra, ‘Systemic Racism, the Government’s Pandemic Response, and Racial Inequities in Covid-19’, Saint Louis U. Legal Studies Research Paper No. 2021-02 (18 March 2021).

263  R Yearby and S Mohapatra, ‘Systemic Racism, the Government’s Pandemic Response, and Racial Inequities in Covid-19’, Saint Louis U. Legal Studies Research Paper No. 2021-02 (18 March 2021).

264  S McMinn, S Chatlani, A Lopez, et al, ‘Across the South COVID-19 Vaccine Sites Missing from Black and Hispanic Neighborhoods’ NPR (Online, 5 February 2021).

266  A Johns, ‘For Immigrants, IDs Prove To Be a Barrier To a Dose of Protection’ The Washington Post (Online, 10 April 2021).

271  NH Division of Public Health Services, ‘NH COVID-19 Vaccination Allocation Guidelines for Phase 1b’ (5 February 2021).

272  J Tolbert, J Kates, and J Michaud, ‘The COVID-19 Vaccine Priority Line Continues to Change as States Make Further Updates’ Kaiser Family Foundation (Online, 21 January 2021).

273  A Goodnough and J Hoffman, ‘The Wealthy Are Getting More Vaccinations, Even in Poorer Neighborhoods’ New York Times (Online, 4 February 2021).

274  A Goodnough and J Hoffman, ‘The Wealthy Are Getting More Vaccinations, Even in Poorer Neighborhoods’ New York Times (Online, 4 February 2021).

275  M Martinez and S Sparber, ‘As Texas Expands COVID-19 Vaccination Eligibility, Racial Dispariteis Persist Among Black, Hispanic Residents’ Texas Tribune (Online, 19 March 2021).

276  F Hussein, ‘Detention Center Officer Sues Over Mandatory Vaccination Order’ Bloomberg Law (Online, 1 March 2021).

277  P Sullivan, ‘New York County Issues Subpoenas to People Refusing to Talk to Contact Tracers’ The Hill (Online, 1 July 2020).

279  National Academy for State Health Policy, ‘State Approaches to Contact Tracing During the Covid-19 Pandemic’ (22 April 2021).

280  National Academy for State Health Policy, ‘State Approaches to Contact Tracing During the Covid-19 Pandemic’ (22 April 2021).

282  National Academy for State Health Policy, ‘State Approaches to Contact Tracing During the Covid-19 Pandemic’ (22 April 2021).

283  T Weinberg, ‘Missourians Asked to Contact Trace On Their Own’ The Joplin Globe (Online, 5 March 2020).

284  Texas Executive Order GA 08 (19 March 2020).

287  Texas Executive Order GA 26 (3 June 2020).

288  18 US Code s 1385 (1878).

289  10 US Code s 251, et seq (1807).

291  San Francisco Police Department, Notice 20-045, Enforcement of Public Health Orders (23 March 2020).

292  Texas Executive Order GA 29 (2 July 2020).

293  A Southall, ‘Scrutiny of Social-Distance Policing as 35 of 40 Arrested Are Black’ New York Times (Online, 7 May 2020).

294  Faust v Inslee 2020 WL 25573290 (2020) (US District Court for the Western District of Washington).

295  Lighthouse Fellowship Church v Northam, 462 F.Supp.3d 635 644 (2020) (US District Court for the Eastern District of Virginia).

298  Gregory A Wellenius et al, ‘Impacts of Social Distancing Policies on Mobility and COVID-19 Case Growth in the US’ (2021) 12 Nature Communications 3118.

299  Gregory A Wellenius et al, ‘Impacts of Social Distancing Policies on Mobility and COVID-19 Case Growth in the US’ (2021) 12 Nature Communications 3118, figure 2c.