A Clearinghouse for Cases and Scholarship
The battle against Covid-19 has been compared to fighting a war. The weapons might be microbes, not missiles, but the toll on American lives is no less horrendous. To date, casualties from Covid-19 have already exceeded the number of American soldiers lost in the Vietnam and Korean wars combined. And victory over the virus is nowhere in sight.
As in any war, the pressure on government officials to successfully wage the war is immense. If leaders believe civil liberties must be curtailed to keep Americans safe, they will be tempted to act now and worry later about the constitutional ramifications. Consider how Francis Biddle, the Attorney General for President Franklin Delano Roosevelt, described FDR’s attitude toward the evacuation of Japanese Americans from the west coast during World War II:
Nor do I think the constitutional difficultly plagued him. The Constitution has not bothered any wartime president. That was a question of law, which ultimately the Supreme Court would decide. And meanwhile – probably a long meanwhile – we must get on with the war.
Civil liberties have in fact been curtailed in the name of protecting Americans from the coronavirus. Citizens have been ordered to stay home, businesses shuttered, large gatherings banned, vital health services suspended, and travel restricted. And much of this has happened with little or no individualized due process.
Lawsuits challenging these actions have come fast and furious, especially concerning restrictions on religious assemblies. Even the Supreme Court has dipped its toes into the controversy. On May 29, 2020, the Court decided, five to four, not to enjoin the application of a California Executive Order to houses of worship. Chief Justice Roberts, who joined with the four liberal justices to deny emergency relief, explained his reasoning:
Our Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States to guard and protect. When these officials undertake to act in areas fraught with medical and scientific uncertainties, their latitude must be especially broad. When these broad limits are not exceeded, they should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people.
The Court’s other four conservative justices voted in favor of enjoining the California order. The Court’s newest justice, Brett Kavanaugh, wrote a dissenting opinion that characterized the California law as discriminatory toward religious worship and “’odious to our Constitution.’”
Like Chief Justice Roberts, most lower court judges have deferred to the judgments of elected officials about what measures are needed to address the pandemic. But not all have. One lower court judge described the Louisville mayor’s restrictions on church services during Easter as something more fitting “for the pages of a dystopian novel, or perhaps the pages of The Onion.”
Fortunately for the legal community and the community at large, a group of Widener University Delaware Law School students have volunteered to spend their sheltering-in-place summer finding, cataloging, and summarizing the welter of decisions coming out of the courts. The decisions are organized by legal issue. Some concern “structural” constitutional issues, such as whether executives or legislators have primary responsibility for defining the response to the coronavirus (i.e., a “separation of powers” issue), or whether the primary responsibility for addressing the virus lies with state governments or the national government (i.e., a “federalism” issue).
Most of the cases, however, concern claims that government actions have infringed on people’s constitutional rights. May the government, for example, slow the virus’ spread by forbidding live worship services, ordering restaurants and bars to close, or suspending abortion services and gun sales as “nonessential”? Must the government release non-violent prisoners if the government is incapable of adequately protecting the prisoners from the virus?
We are confident the public will appreciate and benefit from the students’ work. You can learn about each student on the Blog’s “about” page.
The materials on this site are for informational purposes only and should not be relied on as legal advice. If you believe your rights have been violated by government responses to the coronavirus, we suggest that you contact an attorney.
PLEASE USE THE LINKS BELOW TO BEGIN YOUR SEARCH
| Structural Issues | Individual Liberties |
| Which government body has primary responsibility for responding to the virus? Federalism Which level of government, federal or state, has primary responsibility for responding to the virus? Separation of Powers Does the executive or legislative branch have primary responsibility for responding to the virus? | Has a government response to the virus infringed on individual liberties? – Economic Liberties – Freedom of Religion – Freedom of Speech and Assembly – Prisoners’ Rights – Right to Abortion – Right to Bear Arms – Right to Travel – Takings of Property Voting Rights |