A more balanced critique of the Attorney General's view of the scope of executive power would be both more persuasive and less polarizing.
Public health measures typically receive an extraordinary degree of deference from courts in the U.S. This is understandable given the frequent need for quick action to limit the spread of a disease, the ex ante uncertainty regarding when a threat may arise or what type of disease it might be, and the mode of a disease’s transmission. All of these, plus the expertise needed both to understand and to respond requires that government be given latitude to act in the public welfare. Yet even public health threats do not provide carte blanche to American governments. As Wisconsin Supreme Court Justice Rebecca Grassl Bradley observed last May in a concurring opinion to a decision holding that Wisconsin laws did not authorize the broad COVID-related orders of the head of the state’s Department of Health Services, “It is especially in times of emergency that we must protect the rights of the people, lest we establish a dangerous precedent empowering less benevolent government officials in the future to oppress the people in the name of exigency.”
Cases challenging aspects of government responses to the pandemic can’t help but scratch existing constitutional and legal itches. They challenge the statutory and constitutional bases of legislative delegation to executive branches, both to chief executives (governors and the president) as well as to administrative agencies. They also challenge the constitutional “reasonability” of state government responses to the pandemic in the form of prohibitions on non-essential travel and corresponding shelter-in-place requirements, closure of non-essential businesses, limitations on the size of gatherings, and more.
Judges, predictably, have mainly deferred to government action. Notable exceptions exist, however. Most recently, the Michigan Supreme Court held that the attempt by the state’s governor to continue the exercise of emergency powers beyond an initial 70-day period was not authorized by law and violated the state constitution’s separation-of-power doctrine. Last May, the Wisconsin Supreme Court held that the state’s Department of Health Services’ stay-at-home order, and prohibitions on non-essential travel and business operations, failed to follow statutory requirements for adopting administrative rules, and therefore were “unlawful, invalid, and unenforceable.”
A third decision, that of a Federal district court in western Pennsylvania, is perhaps most surprising. In Butler v. Wolf, the Federal district judge (William S. Stickman IV) held that  flat numerical limits the state imposed on non-commercial group meetings violated the First Amendment’s guarantee of freedom of assembly;  the state’s stay-at-home and business closure requirements violated the Due Process clause of the Fourteenth Amendment; and  the state’s business-closure order also violated the Fourteenth Amendment’s Equal Protection clause.
Butler v. Wolf
In any case litigating Constitutional rights and liberties, the standard of review that the judge applies to decide the issues is critical to the outcome. Ordinary social and economic laws typically receive deferential rationality review. To survive this low level of constitutional scrutiny a law need only have a rational relationship to some legitimate governmental objective. Under rationality review, the party attacking the constitutionality of the law bears the burden of proving there is no conceivable constitutional basis for the law.
On the other hand, cases that touch on fundamental rights (like free speech) or suspect classifications (like race) generally receive a form of heightened judicial scrutiny in the form of “strict scrutiny” or “intermediate scrutiny.” Under strict scrutiny the government’s law or action will be sustained only if the government proves it is necessary to achieve a compelling state purpose. Laws rarely survive strict scrutiny. (Strict scrutiny is “strict in theory but fatal in fact” in Gerald Gunther’s pithy formulation.) “Intermediate scrutiny,” as the phrase implies, allows a little more latitude for government laws and actions than strict scrutiny allows. Laws reviewed under “intermediate scrutiny” will be struck down unless the government can show that the law advances an important governmental interest and that the law is substantially related to that interest.
The critical move of Judge Stickman in Butler v. Wolf was his determination that intermediate review applied to Pennsylvania’s limitation on the size of groups and strict scrutiny applied to the state’s stay-at-home orders. (The court applied deferential rationality review to the business closure requirements.)
Pennsylvania’s numerical limitation on the size of non-commercial group meetings (limited to 25 people) merited intermediate review, Stickman held, because it trenched on the fundamental First Amendment right of freedom of assembly. In contrast, he applied strict scrutiny to review the state’s stay-at-home order given the breadth of the state’s imposition on the fundamental constitutional right of freedom of travel. (While long held to be a fundamental right, the freedom to travel has been located by different Supreme Court decisions and different Supreme Court justices in several different provisions of the U.S. Constitution.)
Stickman concluded that numerical limits to the size of political, social (and religious), educational and other non-commercial groups in Pennsylvania failed intermediate scrutiny. While those limits survived the purpose prong of the test—preventing the spread of the COVID virus was an important governmental objective—it failed the “means” prong in that the state’s flat numerical limit on non-commercial meetings was not narrowly tailored. In contrast to the state’s treatment of non-commercial meetings, gatherings in many commercial establishments were not limited to a flat number. Rather, the number of people allowed to gather in a commercial establishment was limited to a percentage of the building’s legal occupancy. The state capped indoor meetings of non-commercial groups at a flat 25 people no matter how large the building. Stickman quoted a Kentucky court’s opinion that “if social distancing is good enough for Home Depot and Kroger, it is good enough for in-person religious gatherings.” Similarly, Stickman held the stay-at-home orders were far too overly broad to survive the “narrow tailoring” requirement imposed by strict scrutiny.
While applying deferential rationality review to the closure of “non-essential” businesses, Stickman concluded that the designation and implementation of the rules were so arbitrary and capricious that they could not survive even this low standard of review. So, too, there were so many exceptions to the requirements on business closures that the requirement also violated the Equal Protection clause.
While Stickman’s analyses of Pennsylvania’s stay-at-home orders and flat limits on the meeting size of non-commercial groups have a shot at being upheld on appeal, his analysis of the business-closure orders is much less likely to be upheld. The flip side of Gunther’s maxim that strict scrutiny is “strict in theory but fatal in fact,” is that rationality review is “deferential in theory, but non-existent in fact.” While a number of state judiciaries apply rationality review “with bite,” Federal courts these days typically read rationality review to apply an extremely deferential standard of review. This level of review often times requires that plaintiffs “negative every conceivable” basis by which a law could be rationally related to any conceivably legitimate government purpose. As a result, it is doubtful the business-related conclusions of Stickman’s decision would be sustained by an appellate court. And if they were to be upheld, it would signal an openness to significantly revising modern application of rationality review at the Federal level.
In re Certified Questions from the United States District Court
The Michigan Supreme Court’s decision striking down the governor’s COVID orders came in response to “certified questions” about Michigan state law from a Federal District Court judge who needed answers to decide a related challenge in Federal court.
The Michigan governor implemented the standard set of COVID-related orders. She imposed limits on the number of people who could gather together in private or public venues, limited and closed some businesses but not others, limited non-essential travel, etc.
The state’s Supreme Court decision rejected two different statutory bases asserted by the Governor to continue the state of emergency in response to the COVID virus beyond April 30 of this year. The first statutory basis, the Emergency Act of 1976, allowed the governor to declare a “state of emergency” for a 70-day period. In order to continue a state of emergency beyond that period, however, the governor needed the approval of the state’s legislature. The approval was not forthcoming. The Michigan Supreme Court disposed of this question quickly, holding that without legislative approval, the governor could not continue the state of emergency beyond the initial 70-day period.
The Governor also asserted that a second law, the Emergency Powers of the Governor Act of 1945 (EPGA), authorized her continuing actions. This law contained no time limit. It provides that “During times of great public crisis, disaster, rioting, catastrophe, or similar pubic emergency . . . when public safety is imperiled . . . the governor may proclaim a state of emergency.” This allows the governor to take “reasonable” executive actions “necessary” to protect life and property. It purports to do nothing less than provide the governor the full authority of the state’s “police powers” during these emergencies.
The Court held that the EPGA violated the non-delegation doctrine; the Act unconstitutionally delegated legislative power to the executive branch of Michigan’s state government.
The commonly accepted standard today to determine whether a delegation from the legislature to the executive branch is constitutional is whether the legislative act provides an “intelligible principle” which guides or limits the delegation. (Perhaps tellingly, the Court also observed in a footnote that criticism of the “intelligible principle test” has been growing. It nonetheless applied the traditional test in its opinion.)
With a concurrence from one Justice on part of the majority opinion, the Court held that the delegation in the EPGA failed to satisfy the intelligible principle test. The law delegated state police powers—the essential authority of state legislatures—to the state’s executive branch. The law’s requirement that the power be exercised “reasonably” when “necessary” did nothing more than rehearse the accepted contours of the police power itself, according to the Court. Further, without a statutory time limit, the extraordinary assumption of full police powers by the state’s governor could continue indefinitely. This went too far. In response the Court concluded the EPGA unconstitutionally delegated legislative power to the state’s executive branch.
Consequently, the Michigan governor had no statutory basis for continuing her emergency orders after April 30. The orders were null and void.
Wisconsin Legislature v. Palm
The Wisconsin Supreme Court case, decided in May, pertains to the state legislature’s attempt to rein in the administrative state. Wisconsin’s Secretary designee for the Department of Health Services issued an “emergency order” in late March in response to the COVID pandemic with the standard limitations on size of gatherings, non-essential travel, non-essential business, etc.
Several years ago, in order to assert greater supervision over the rulemaking power of executive agencies, the Wisconsin legislature enacted procedural requirements that executive departments needed to follow in order to make rules. These requirements applied to rules made by executive agencies during times of emergency as well as rules made at other times. Palm did not follow the legislature’s specified procedures in making her orders. Palm argued that the law did not apply to her decisions, because her COVID decisions were executive “orders” rather than “rules,” and orders were not covered by the statute.
The Court, however, made short work of her attempt to distinguish her “order” from a “rule.” The Court observed that the statute itself expressly applied to actions including a “general order of general application.” This means that if an executive order was not limited to a decision confined to specific parties and a specific dispute, then the promulgation of even an executive order needed to follow the stipulated statutory process for the approval of executive rules.
The Court’s decision skirted with constitutional issues related to delegation, the separation of powers, and exercise of arbitrary power by the executive branch. Nonetheless, interpretation of the pertinent statutes were sufficient for the Wisconsin Supreme Court to conclude Palm did not hold the power she sought to assert.
All three of these cases raise different legal and constitutional challenges to essentially the same set of policy responses to the epidemic implemented in the three states. None of the decisions prevent states from responding vigorously to the pandemic. Nonetheless, each decision provides notice to their respective state government that panic does not provide carte blanche to state executives. As Wisconsin Supreme Court Justice Bradley also observed in her concurring opinion, “Fear never overrides the Constitution. Not even in times of public emergencies, not even in a pandemic.”