State Public Health Authorities Face COVID-19 Legal Challenges

October 29, 2020 | Andy Baker-White

As COVID-19 spread across the country, governors and health officials invoked their emergency powers to order physical distancing measures designed to reduce social interactions and slow the spread of the disease. Several of these measures, such as stay-at-home orders, business and school closures, public gathering limits, face covering requirements, and others, are being challenged in federal and state courts. Many of the legal challenges include claims of executive overreach and misuse of emergency power as well as allegations of violating individual rights protected by the U.S. Constitution. There are a few issues of particular interest to state public health in these lawsuits, including:

  • The underlying legal authority of state executives to respond to public health crises is being challenged.
  • Claims are being made that “public health” falls outside the state executive’s emergency powers or that COVID-19 does not rise to the level of an emergency under state law.
  • Courts are weighing the judicial deference to state action in response to public health emergencies afforded by the precedent set in Jacobson v. Massachusetts against more recent standards of judicial review for constitutional claims.

In Midwest Institute of Health, PLLC v. Whitmer, a group of healthcare providers in Michigan filed a lawsuit in federal court claiming the Gov. Gretchen Whitmer’s order restricting nonessential medical and dental procedures was an unlawful exercise of authority and a violation of the separation of powers and non-delegation doctrines. The court asked the Michigan Supreme Court:

  1. Whether the governor had authority under the state’s Emergency Powers of the Governor Act (EPGA) of 1945 and the Emergency Management Act (EMA) of 1976 to issue or renew her COVID-19-related orders after April 30, 2020, the last date the state legislature denied renewing her declarations.
  2. Whether either of the laws violated the state Constitution.

The Michigan Supreme Court determined that the governor lacked authority under the EMA to declare a “state of emergency” or a “state of disaster” after April 30 —the date the legislature last denied to renew the declaration —since the law establishes a 28-day limitation on her authority to issue the declarations. The court reasoned that “[n]othing prohibits the Legislature from placing such a limitation on authority delegated to the Governor, and such a limitation does not render illusory in any way the delegation itself.”

As to the EPGA, the court declared the law unconstitutional in its entirety after finding that it unlawfully delegated legislative powers, including plenary police powers, to the executive branch and allowed the indefinite exercise of those powers. Subsequent to this decision, the Michigan Supreme Court reversed the Michigan Court of Appeals’ decision in Michigan House of Representatives and Michigan Senate v. Whitmer by holding that “the Emergency Powers of the Governor Act is incompatible with the Constitution of our state, and therefore, executive orders issued under that act are of no continuing legal effect.” With the governor’s authority invalidated, the Michigan Department of Health and Human issued an order related to face covering requirements and gathering limits effective through Oct. 30, 2020. In addition to the health agency order, several local health departments have issued their own orders. (e.g., Washtenaw County, City of Detroit, and Ingham County.)

In Free Minnesota Small Business Coalition v. Walz, plaintiffs challenged Gov. Tim Walz’s COVID-19-related executive orders, alleging that public health is not a permissible rationale for invoking emergency powers under the Minnesota Emergency Management Act. The court dismissed the lawsuit and found that the governor acted pursuant to the authority delegated to him by the legislature and that the “COVID-19 pandemic constitutes an act of nature that provides the Governor with the basis to declare a peacetime state of emergency in Minnesota." The court also asserted that requiring the governor’s emergency order to go through "a notice and comment period, public hearings, and review by an administrative law judge" would be "cumbersome and unreasonable."

In 4 Aces Enterprises, LLC v. Edwards, several bar owners challenged Louisiana Gov. John Bel Edwards’s order banning on-site consumption of food or drink at bars while allowing restaurants with bars to remain open. The bar owners alleged that the order lacked a rational basis and was a violation of due process, equal protection, and freedom from unlawful takings. The court denied a preliminary injunction request, relying on the precedent established by Jacobson v. Massachusetts that gives deference to state restrictions during a public health emergency. The bar owners were able to show that the state’s order infringed upon their constitutional rights, however, based upon the testimony of Alexander Billioux, MD, the state health official at the time, but the court concluded that closure order “bears a ‘real or substantial relation’ to the goal of slowing the spread of COVID-19 and is not 'beyond all question' a violation of the bar owners’ constitutional rights.” An appeal of the court’s decision is pending before the U.S. Court of Appeals for the Fifth Circuit.

While the court in 4 Aces Enterprises noted that “[t]raditional doctrine does not control during a pandemic; [Jacobson] does” other courts have applied the levels of scrutiny for constitutional claims that have been established since the Jacobson decision. In Butler County v. Wolf, the U.S. District Court for the Western District of Pennsylvania granted a declaratory judgment striking down the public health orders issued by Pennsylvania’s Gov. Tom Wolf and health secretary Rachel Levine. The court found no evidence that the specific numerical limit on public gatherings were necessary to achieve the public health goals and concluded that the order was overly broad and not narrowly tailored to meet the compelling governmental interest. The court also found the stay-at-home orders to not be narrowly tailored, stating that such actions have never been used before to combat a disease and that they were a “dramatic inversion of the concept of liberty in a free society.” The orders to close businesses were also found to lack a rational relationship to a legitimate governmental end with the court concluding that the design, implementation, and administration of the closure categories arbitrary. Finally, the court held that the business closure orders violated the Equal Protection Clause since it did not keep consumers home from businesses that could be open. In early October, the U.S. Court of Appeals for the Third Circuit postponed the District Court’s invalidation of the COVID-19 orders pending the state’s appeal.

With many of the decisions above being appealed,we can expect further consideration of the legal challenges being made against state public health authority. ASTHO will continue to monitor these and the many other pending lawsuits.