The Pandemic Balancing Test You Can Believe In

In light of the threat that the new coronavirus presents to people in the U.S., are stay-at-home orders and mandatory business closures constitutional? Proponents of the view that these orders are unquestionably constitutional point to court cases broadly authorizing governmental actions to contain disease. And state governments do have broad authority under their police powers to respond to pandemic threats. Judges deferentially review legislative and executive actions in response to pandemics threats. Nonetheless, even the most broadly worded decisions do not provide state governments with a carte blanche, as these very same cases also note.

As Felix Frankfurter put it, “Constitutionality is not a fixed quality; in crucial cases it resolves itself into a judgment upon facts.” This is reflected in the constitutional requirement that exercise of the police power, even in the face of a pandemic, must nonetheless be “reasonable.” To be sure, reasonability is interpreted by courts in a manner highly deferential to legislative and executive actions. Arguments over public policy are made more appropriately to legislators and executives than to courts. Nonetheless, even under deferential rationality review, courts can provide a “sober second look” at the possibility of policy overreach by government officials in the grip of pandemic panic. That is one of the purposes, after all, for buffering judges from the full force of political pressure faced by legislators and executives.

But what counts to determine constitutional “reasonability” for legislatively-authorized executive actions that respond to a pandemic? Judicial tests generally, if often implicitly, weigh the costs and benefits of a given policy. And government actions get the benefit of the doubt unless they trench on suspect categories like race or on special domains such as interstate commerce.

What goes into these calculations? The threat that the disease itself poses obviously counts. We can measure this in terms of the probability of catching the disease, and the magnitude of the possible effects, whether death or injury.

But two aspects of the cost of the government’s action also count in determining constitutional reasonability: the “fit” between how a policy classifies people and the harm it seeks to reduce, and, secondly, the cost the government’s action imposes on people burdened through the classification.

Before getting to the cost, we need to unpack this notion of the “fit” between a governmental action or classification and the harm the government actions seek to address.

By “fit,” I mean the degree to which a government’s policy is overinclusive or underinclusive.

“Overinclusive” means that a policy burdens a set of people larger than the set of people who constitute the threat. A classic example of an overinclusive governmental action is a roadblock set up at 2 a.m. The regulated trait is “driving at 2 a.m.” The harm sought to be prevented is “drunk driving.” Yet even at 2 a.m., the set of people with the trait—driving at 2 a.m.—is larger than the set of people who do the harm.

“Underinclusive” means that a policy action (and associated cost) is imposed on a set of people smaller than the set of people who constitute the threat. A curfew that applies only to people less than 21 years old, for example, is underinclusive. After all, people over the age of 21 engage in mischief as well as people under the age of 21. Yet the curfew burdens only those under 21. (Policies can be both over- and underinclusive. For example, raising the drinking age to 21 in order to reduce drunk driving is both overinclusive and underinclusive: Many 18 to 21 year-olds drink responsibly, so the law’s prohibition is overinclusive relative to the harm it seeks to address, and many people over the age of 21 drink irresponsibly, so the prohibition is also underinclusive relative to the harm it seeks to address.)

Almost all laws are over- or underinclusive to some degree. Constitutionality does not require a perfect fit. But the reason or benefit for a law’s overinclusivity relative to the cost or burden of an overinclusive requirement all go into determining its constitutional “reasonability.”

The reason for overinclusive governments actions is that more carefully-tailored policies may not address the harm in as effective a manner relative to keying on less overinclusive traits. Consider again our drunk driving example: Pulling over only drivers whom the police observe to be driving erratically is far less overinclusive than a roadblock. But it would also miss many drunk drivers whom a roadblock would catch.

The tradeoff between the two means of apprehending drunk drivers at 2 a.m. is this: The roadblock is more effective at catching drunk drivers than is police observation alone. Its over-inclusiveness is its virtue. Nonetheless, there is a cost imposed on those who have the trait but who do not do the harm—late-night drivers who haven’t touched liquor that night. This is normally a low cost. The delay of a few minutes.

So, too, stay-at-home orders and business closure orders are also overinclusive for a reason. We don’t know who has the virus. Yet the regulated trait is very broad indeed. The regulated trait is “being a person” for stay-at-home orders, and being a “non-essential business” for closure orders. The benefit of both requirements is to slow or stop the spread of the virus. (These orders are also underinclusive given their many exceptions. But that for a separate discussion.)

The problem with the stay-at-home orders and business-closure orders is not their bare over-inclusiveness. The problem is the much higher burdens these orders impose on people relative to the costs imposed in the cases invoked today to suggest the ostensible constitutionality of these orders.

Perhaps the most cited case ostensibly settling the unquestioned constitutionality of today’s stay-at-home and business closure orders is the 1905 Supreme Court case, Jacobsen v. Massachusetts. This decision approved mandatory vaccinations for small pox in Massachusetts.

It is true that the Supreme Court approved the significantly overinclusive governmental requirement in that case. And the Court does use very broad language.

While not rising to the equivalent of death, nonetheless, the very substantial disruptions resulting from forced unemployment and business closures—poverty, stress, limited future life prospects—could easily be ranked by many as the equivalent of a serious impairment of health.

Often ignored in today’s invocations of the decision, however, are two aspects of the case. The first is that the Court carefully cabins its legal conclusion in a discussion of the relatively low costs of the state’s overinclusive requirement. Also ignored today is that smallpox represented a much greater threat to life and health than the coronavirus does.

Starting with the last point first. At the time of the Jacobson decision, the most prevalent form of smallpox had a fatality rate of 30 percent. This is much higher than even maximum estimates of today’s coronavirus threat except perhaps for the very highest risk groups.

But it’s the disparity in the costs imposed by the overinclusive vaccination requirement relative to the costs of the current stay-at-home and business-closure orders that is most ignored. The Supreme Court itself observed in Jacobsen that courts may need to intervene should the government’s response be “unreasonable” or “might go so far beyond what is reasonably required for the safety of the public.” Justice Harlan, writing for the Court:

Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the State, to protect the people at large was arbitrary and not justified by the necessities of the case. We say necessities of the case because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all, might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons (emphasis added).

In this regard, the cost of Massachusetts’ overinclusive vaccination requirement was very low indeed. It was, literally, a skin prick. And what of the risk to health of the vaccination itself? Here the proper comparison is the probabilistic threat to the community (including the possibility that the non-inoculated person would be at risk from smallpox) relative to the ex ante threat of the vaccination to the health of an individual. The Court took judicial notice that while medical professionals:

have recognized the possibility of injury to an individual from carelessness in the performance of it, or even, in a conceivable case, without carelessness, they generally have considered the risk of such an injury too small to be seriously weighed as against the benefits coming from the discreet and proper use of the preventive . . .

Weighing the marginal expected benefit of the vaccine against the marginal expected cost, the Court deferred to the judgment that the benefits easily exceeded the costs. That is, in the justices’ view, the requirement was constitutionally reasonable.

Significantly, however, the Court expressly limited its holding to persons for whom the cost of the overinclusive requirement was very low:

we are not inclined to hold that the statute establishes the absolute rule that an adult must be vaccinated if it be apparent or can be shown with reasonable certainty that he is not at the time a fit subject of vaccination or that vaccination, by reason of his then condition, would seriously impair his health or probably cause his death. No such case is here presented.

Today’s stay-at-home and business closure orders impose much, much heavier burdens on the overinclusive class of individuals than did the overinclusive requirement in Jacobson. The cost of today’s orders is much greater than a skin prick. While not rising to the equivalent of death, nonetheless, the very substantial disruptions resulting from forced unemployment and business closures—poverty, stress, limited future life prospects—could easily be ranked by many as the equivalent of a serious impairment of health. And these costs are incurred with certainty by many swept into the overinclusive requirements.

So, too, there are less burdensome alternatives that can dramatically reduce the threat of unchecked coronavirus at a small fraction of the cost imposed by stay-at-home and business-closure orders: Masking, distancing, cleaning. (We might here note the irony that widespread resistance to masking requirements invites government officials to take the far more burdensome steps of imposing stay-at-home and business-closure requirements.)

The Court rejected the extreme libertarianism asserted against Massachusetts’ overinclusive vaccination law in its 1905 decision. Contrary to today’s narrative, however, the application of the Massachusetts’ decision to today’s coronavirus stay-at-home and business closure requirements is far from straightforward. With a much lower expected benefit and much higher costs resulting from today’s overinclusive government requirements relative to those litigated in Massachusetts case, the constitutional reasonability of today’s requirements are much more constitutionally dubious, even when applying the courts’ most deferential standards of review.

Reader Discussion

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on July 14, 2020 at 10:20:39 am

For a good breakdown of the reasonableness of the Covid actions I highly recommend three articles in https://JBHandleyBlog.com. "Lockdown Lunacy: The thinking person's guide." "Lockdown Lunacy 2.0: Second wave? Not even close." And "Oregon's COVID-19 data isn't scary, so why the panic?".
The most over-inclusive law was the 18th Amendment. A bunch of goodie-goodies decided that America would be better, lives would be saved, families kept from ruin, etc. if alcoholic was outlawed. We overturned the 18th Amendment because because it infringed on our desire to own our own lives, and to exercise our liberty, and pursue our happiness--even at the risk of lives lost, family ruin, etc. 100 years ago our rights were valued more highly. The question with the Covid prohibitions is whether we still value those rights.
Within the world of administrative law, certain medical administrative groups have the ability to create laws and to imprison people without the benefit of a trial or lawyer. Some people in those administrative groups are currently advocating that masks be worn in public at all times on a permanent basis, I kid you not.

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Scott Amorian
on July 14, 2020 at 10:39:25 am

This is all I have to say on the matter:


A nice simple graph. Read 'em and weep Fauci!

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on July 15, 2020 at 18:49:17 pm


"[O]ne year after the first cases, the CDC estimated that about 61 million Americans caught the H1N1 flu and 12,500 died. It is now considered one of the less severe pandemics in history, with a death rate of 0.001% to 0.007%.

Johns Hopkins University researchers project the U.S. death rate for the coronavirus at about 1.2%. If a projected 40% of the population is sickened, that would mean more than 1.5 million deaths without any suppression measures."

Nice simple article. Read 'em and weep.

Seriously, weep.

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on July 15, 2020 at 20:48:53 pm

Weep, indeed! For all the damage such predictions and models have done to the respect previously (and properly) reserved for *science*
Yet, this is not the first instance of overly pessimistic modelling (or YODELLING, HA) of viral outbreaks. Both Oxford college and Imperial college have failed abysmally in projecting impacts of viruses over the past 20+ years. Fauci and company are just as bad. Read HIS record AND weep.

AND, Oh BTW, all signs indicate (as do the records themselves) that the CFR (confirmed fatality rate) is 0.04 or less for the ChiComm flu. There is also considerable evidence that the reported deaths from ChiComm flu are overestimated by double digit amounts.
BTW2: As a result of the shutdown of businesses, etc it is estimated that FIVE MILLION Americans have lost their health insurance. Gee, I thought that would upset you as you always call for more health insurance.

Give it a rest and i hope you are enjoying your life as the Masked Nobody Bandito. Ha!
Seriously though, Take care!

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on July 15, 2020 at 22:58:29 pm

True, I have generally opposed the US's practice of tying health insurance to employment. COVID (and its effects on the next election) might put the final nail into that coffin.

And, yeah, it's not as much fun being nobody.really when EVERYBODY is wearing a mask. When everybody is nobody, nobody is. And you can quote me on that.

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on July 16, 2020 at 11:37:38 am

As always a "fun" response.
BTW: some scribe has today suggested that the next ChiComm stimulus should include a subsidy for COBRA coverage. Not an unreasonable suggestion.
I must point out however that COBRA coverage has gotten pretty dang expensive and i am not certain that sufficient funds can be provided to allow for significant numbers of persons to purchase it.

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on July 14, 2020 at 12:22:36 pm

A suggestion:

One should read one of the linked articles provided by Scott:


Rather interesting.

I would also add that news comes today that FIVE MILLION Americans have lost their health insurance as a result of being forced out of their jobs.

Gee, that sure does seem like a sensible and effective "health" solution to this new plague, doesn't it?
Then again, it may be that my little community is the only one in which residents are NOT awakened by sounds of the Town Crier upon his oxcart saying" Bring out Your Dead."
I must be lucky!

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on July 14, 2020 at 12:48:39 pm

In March, 2020, acting forthrightly, honorably and in all good-faith, President Trump adopted a War Plan to protect and defend the nation by confronting and destroying the Wuhan, China Virus. In going to war to protect public health from the pandemic, Trump unknowingly made a Faucian Bargain, a pact with the Devil that is the Democrat Party, its legions of foot soldiers in the public health bureaucracy and their allied propagandists of the media. As events since March have shown, this has turned out to be a disastrous political bargain with malevolent powers intent on destroying Trump's 2020 reelection, even if at the cost of the nation's health, welfare and national security.

Trump naively, unwittingly and acting in good faith ceded political control over the Virus Crisis to Blue State governors with an anti-Trump agenda, ceded moral authority over the Virus Crisis to the politicized media and ceded the vagaries of what has passed for Virus Crisis "science" to the rhetorical manipulations of Fauci and the sophistry of his politicized cohorts in the federal and state public health bureaucracies, the "Deep State" of public health.

These were unwitting tactical errors in President Trump's War Against Red China's War on World Health and Economic Stability. But they empowered the Democrat Party to worsen the Virus Crisis, all-but-destroy the economy, vastly enlarge the welfare state, weaken our public health system, put millions of people at serous risk of disease and death from countless, unattended, non-viral health threats; indefinitely shut down our schools and closed our universities, businesses and churches, and interminably imprisoned, to varying degrees of restraint on our liberties, 325 million Americans.

We now, all of us, work (or do not work) for and take our marching orders from the Democrat Party, as those orders are articulated through government diktat, conveyed by major "news" (sic) media, enforced by state and local law enforcement, and reinforced by the shaming and monitoring tactics of the platforms of Leftist social media.

There is good reason to believe that Red China may well have seen virology as a strategic opportunity to win its War Against World Health and Economic Stability and that Red China deliberately unleashed the Wuhan, China Virus as a deliberate attack aimed especially at gravely weakening its only significant adversary, the USA. If so, Red China has succeeded bigly. And the Democrat Party has played well its historical role of Fellow Traveler to America's enemies. For the mere short-term gain of winning the 2020 election, the Democrat Party has played right into the hands of our most deadly enemy.

The hapless, well-intentioned, tactical errors of March may become for America the existential, strategic Ides of March.

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on July 14, 2020 at 15:02:09 pm

Balancing tests do not work well when the items to be balanced change continuously, and there is uncertainty about what exactly is being balanced. Several factors have coalesced to create a COVID fiasco:

1. Expertise. Knowing more than anyone else about something does not mean that you know enough about it that you can make useful decisions. Dr. Fauci in particular has reached the limits of his expertise, which is increasingly out of date and hobbled by tunnel vision.

2. Models. That the models used to inform pandemic-control decisions were wanting is obvious. The reasons for this are that the current understanding of virology is inadequate to the task of constructing adequate models; that the data used to make predictions are corrupted, unreliable, missing and insufficiently understood; and that the selection of models is affected by the desirability of predetermined outcomes.

3. Fallacies. Gaps in knowledge, data, and expertise were filled in by guesses, spurious assumptions and outright absurdities. The result was reliance on fallacies, the most prominent of which was the single-factor fallacy. This persistent fallacy provides that any any differences in COVID-19 experiences over time or between varying locations are due to single factors, such as policy interventions. It is in fact ludicrous to ask what policy difference between states accounts for differential infection or mortality rates. We can't even begin to understand what factors account for such differences, much less conclude that interventions can significantly affect them. This is especially so when discussing the effects of demonstrations versus the effects of "opening up" commercial activity. There seems to be a cult-like allegiance to the beliefs that SARS-CoV-2 can distinguish, and accommodate, the rationales for different types of exposures.

4. Data. The corruption and mutilation of what should have been objective and useful clinical data regarding SARS CoV-2 infection and COVID-19 are scandalous. While it may be legitimate to, for some purposes, err on the side of inclusiveness, and for others err on the side of certainty in collecting data, the fact is that either strategy introduces errors. As a result, we really don't know how many people died of COVID-19, what the performance characteristics of SARS CoV-2 testing are, or whether there is significant variation between the accuracy of various testing programs. As a result, we don't know derivative information with any certainty: what the risk factors for transmission are, what the fatality rate is, how many people are actually infected, whether and which interventions affect coronavirus spread and outcome, etc. That the data became a political football is one of the great failures of the coronavirus response.

5. Changes. It would be useful to know how many people whose deaths were attributed to COVID-19 had COVID-19 pneumonia. This was the basis of the hand-wringing over ventilators, and is particularly important now because there is an increase in COVID cases, but an attenuated increase in mortality. It is known that pneumonias of all types demonstrate seasonal variations, and it may be that the risk of COVID-19 pneumonia in infected patients is likewise seasonal. This creates a huge dilemma for policy makers: what if widespread coronavirus infections that occur when the risk of pneumonia is lower mitigates the effect of infection in seasons, e.g. winter, when pneumonia is more prevalent? Can changes in the apparent severity of COVID during the recent surge in case number be accounted for by genetic variation, environmental changes, behavioral changes, etc.? Might this surge mean a less severe recurrence later in the year?

6. Uncertainty. We do not know precisely what effect hydroxychloroquine has, largely because of the politicization of the question whether it is effective or not. But there is also uncertainty regarding lots of other things: does remdesivir work? Colchicine? Famotidine? Is BCG inoculation effective? What is the role of vitamin D? Zinc? Do ACE-inhibitors and angiotensin receptor blockers mitigate or exacerbate the risk of adverse COVID-19 outcomes? Is smoking a risk factor or is it protective? Do masks work? What about the six-foot recommendation; has it prevented a single infection? Do we need more ventilators or do ventilators make things worse? What is the incubation period of the virus? Is it spread by fomites or not? What is the incidence of co-infection with other viruses? Does convalescent plasma work? Are the clotting complications in some patients due to SARS CoV-2 or due to some idiosyncratic factor? What about the cardiac complications that seem to have fallen off the radar? Is there a post-COVID syndrome? Why was the spread of SARS CoV-2 on the Diamond Princess limited? Why didn't everyone in San Marino get COVID-19?

7. More uncertainty. Will there be a vaccine? What will be the policy response if the vaccine is no more effective than the annual influenza vaccine? How effective does it have to be before it justifies return to normal? 50%? 80%? 20%? Do antibodies confer immunity? Will immunity have to be demonstrated by some objective measure?

8. What were the harms of the response? One can reasonably surmise that certain medical conditions that required intensive outpatient care, such as chronic wound care for diabetics, were affected by the lockdown. It seems reasonable at least that people with non-healing wounds, cancer, cerebrovascular disease, degenerative autoimmune conditions, etc. had their therapies adversely affected by the lockdown. Some may have been spared COVID-19, but we have no way of knowing what either the objective community-wide benefit, nor subjective personal detriments were. This is hard to fit into a balancing test. Given the fact that it is and always will be impossible to isolate people from environmental pathogens, were the lockdowns nothing more than panic-theater? This of course, is not counting the economic and psychological effects of lockdown.

The bottom line is that we do not know how much control or influence we have over the spread of SARS-CoV-2. The most exacting balancing test is still subject to the dictum "Man plans and God laughs."

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on July 15, 2020 at 18:40:21 pm

How would you have decided Jacobsen v. Massachusetts?
And, notwithstanding all the uncertainties noted above, how should a court look upon government actions regarding COVID-19? Should a judge, aided by a law school education and a law clerk, cite our collective IGNORANCE as the basis to overrule democratically-elected leaders, supported by administrative expertise and public opinion?

It's odd that so often I read people on this site arguing the judges have become too "activist"--yet here it appears that people would like judges to become MORE activist, based on the most complicated and obscure analysis. I don't mean to say that I disagree in theory. (I'm not opposed to "activism" per se.) But I really cannot identify the legal test you would apply to this case, and to Jacobsen v. Massachusetts.

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on July 16, 2020 at 01:17:16 am


Good to see you posting again. Nice to have you back, really. As to your most recent post, I'm not quite sure what you mean. Read the title of the introductory essay, then read the first sentence of my comment. My point is quite simply that there are too many unknowns surrounding SARS CoV-2 and COVID-19 to submit to a standardized balancing test. I am not saying that issues will not arise that may require government discretion or judicial review, or perhaps recall of incompetent politicians. (I am sure there are additional options of a more medieval bent further down the list, but those will not be contemplated here.) The point is that there is no balancing test "you can believe in," if there is too much uncertainty to believe much of anything with any consistency.

Your puzzlement "...I cannot identify the legal test that you would apply to this case and to Jacobsen v. Massachusetts" is a non sequitur. I am not identifying any test for any case, nor am I advocating a rule of decision for tribunals to decide COVID-related complaints. I cannot in fact identify what you might mean by "this case" in the original essay. Perhaps you could be more specific.

Nonetheless, you ask a valid question, and assuming you do so in good faith, I will tell you that I probably would have concurred with Harlan. However, I think that Jacobsen has very little applicability to COVID.

The most significant difference between COVID and smallpox is that the public health methods of the latter were so well established that the Court took judicial notice of them. Practical experience with smallpox made estimation of risks more straightforward, and experience with preventive techniques were, by 1905, backed up by centuries of experience from all over the world. While vaccination had only been around since the early 19th century, inoculation or variolation had been described at least 250 years earlier in China and India. George Washington in fact had issued what some consider the first "executive order" when he ordered susceptible people in Philadelphia to be inoculated using a novel technique that did not require weeks of dietary and mumbo-jumbo preparation. There was also empiric reason to believe in the efficacy of a newer technique, vaccination, which had been around for over a hundred years by the time Jacobsen was decided. (Incidentally, we should note that it was Edward Jenner who proved the efficacy of vaccination, before he is scrubbed from history by woke mobs. He vaccinated the eight year old son of his gardener, then deliberately infected him with smallpox to see if the vaccine worked, an ethical elision that would likely elicit frowny-faces from the morally pure censors of our time.)

Furthermore, the actions of the Board of Health in Jacobsen was fairly well associated with the intervention in question. Such is not always the case, particularly with executive orders issued under emergency authorization with no defined boundary, limit to duration, or metrics by which to ascertain effectiveness and harm. One may note, for example, what was likely the stupidest and deadliest COVID decision, New York's requirement for nursing homes to accept COVID patients, and which in fact prevented them from requiring SARS CoV-2 testing prior to patients being admitted. (query: is the science on testing settled? Is it good? If so could a court have ruled that New York's policy was irrational?) . The rationale for this folly was not public health, but rather "non-discrimination." Other decisions, such as Governor Whitmer's erratic orders regarding permitting sailboats, but not motor boats, proscribing sale of "non-essential items from the same stores that sold the other kind, etc., were so odd that reasonableness could not be assumed. The same can be said of the decision of the Governor of Nevada to prohibit prescribing hydroxychloroquine for suspected COVID, a decision with a basis much more flimsy than that at issue in Jacobsen.

Even with regard to smallpox, the interventions are not unquestionably reasonable. During a smallpox epidemic in El Salvador (occuring incidentally after Jacobsen was decided) the occultist autocratic ruler, Maximiliano Hernández Martínez orderd colored lights to be strung and street lights to be covered with colored cellophane to combat the epidemic. This should tell us something about the dangers of concentrating too much authority in a single authority, but beyond that, what if Governor FundamentalistChristian ordered prayer to halt the spread of COVID? Is this entitled to a presumption of validity? Can the distinctions made between religious services and BLM protests survive a judicial inquiry, or should a court just assume it is reasonable for public authorities to decide which exposures are contagious and which are not? How is a court supposed to treat "expert advice" that changes every couple of weeks? Or should a court take judicial notice that hydroxychloroquine does not work, masks don't prevent infection in months containing a single vowel, but do otherwise, you can catch the virus from surfaces, but not really, etc. The big issues are yet to come: How well established must "contact tracing" be before it is used to confine people to their homes based on the unsubstantiated claims of strangers? Can smartphone tracking apps be made mandatory in the interests of public health, based on the theories of dubious "experts?" Can citizens be denied rights unless they prove, by God-knows-what means that they are "immune?" Must a court accept the results of a COVID test, regardless of the false positive rate, or if that rate is unknown? What trajectory of cases and mortality constitute a perpetual emergency? If "popular support" is given any weight, shouldn't, at a minimum, a legislature have a say? Some courts have already ruled that some COVID restrictions are arbitrary. Expect more of the same.

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on July 16, 2020 at 09:55:31 am

>”My point is quite simply that there are too many unknowns surrounding SARS CoV-2 and COVID-19 to submit to a standardized balancing test. [But] I am not identifying any test for any case, nor am I advocating a rule of decision for tribunals to decide COVID-related complaints.”

Yeah, I noticed. But judges don’t get that luxury. And my point is that most of your criticisms, EVEN IF ACCURATE, will prove irrelevant unless judges have some different standard to apply.

So if someone challenges a governor’s order requiring restaurants to operate indoor seating at 25% capacity or less, you would reject a balancing test and substitute—what, exactly? The obvious alternative standards are 1) reject all such executive orders or 2) defer to all such executive orders. Do you prefer one of these decision options instead? Or do you have some different alternative?

Some people criticize government agents for acting with hubris in the face of uncertainty. Yet here, it appears people are criticizing judges for … failing to act with hubris in the face of uncertainty?

By embracing a “balancing test,” SCOTUS maximized the judicial branch’s power to overrule other branches of government on a case-by-case (and potentially arbitrary) basis. On this blog, we typically complain about unbridled judicial power. Yet when confronted with the alternative—the barely-bridled power that executives wield during emergencies—I kinda like judicial review. Or, at least, the THREAT of judicial review.

That said, we have SOME legal standards with which to evaluate SOME executive orders. I don’t doubt that some courts have held some restrictions to be arbitrary—but I expect they cite actual standards, not just the fact that the judge evaluates risk differently than the executive does.

For example, I favor equal protection of the laws. So I could envision a judge striking (or amending?) an executive order that draws distinctions that it cannot defend rationally. Arguably a policy discriminating between sail boats and motor boats fits into that category. But a policy of shutting down public basketball courts, but not public tennis courts—while appearing to discriminate on the basis of race or social class—is arguably rational, in that basketball players come into closer and longer contact than do tennis players.

A mayor who demanded that street lights be tinted may be crazy—but likely has that authority. Likewise, executives often call for a day of prayer for this or that purpose; people raise Establishment Clause objections, but courts mostly defer. The public’s remedy is at the ballot box. But a policy compelling private citizens to pray would seemed doomed to a Free Exercise objection. If asking the Little Sisters to file a one-page form violates Free Exercise, surely a prayer mandate would.

I had heard that a governor banned the use of hydroxychloroquine for COVID-19 in order to preserve the dwindling supply of the drug for patients with malaria, lupus, and rheumatoid arthritis. I don’t know the legal basis for restricting the prescription of drugs solely to patients who have demonstrated a need for them, but I know that this practice is hardly limited to hydroxychloroquine.

Should legislatures have as say? Sure—as much say as their respective constitutions grant them. Executives typically act under authority granted by the constitution, or by the legislatures themselves. And here, arguably, we meet the crux of our discussion: The judicial standard arguably should relate to the legal authority cited justifying a COVID restriction. That makes it harder to have this discussion in the abstract.

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on July 16, 2020 at 14:28:13 pm

I don’t doubt that some courts have held some restrictions to be arbitrary—but I expect they cite actual standards, not just the fact that the judge evaluates risk differently than the executive does.

This is all you needed to say. It makes my point very well, and makes it reasonable to dismiss the remainder of your comment. The key concept is "actual standards."

Quick question for you: The Bavarian village of Oberammergau holds a Passion Play every ten years, their end of a deal with God. The original deal was that if God spared the village the ravages of then-rampaging plague they would perform the play as promised. The village apparently was spared and has been upholding its obligation since. The next scheduled performance is in 2022. Given that this public health intervention appears to have been effective, does this history establish an "actual standard?"

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on July 16, 2020 at 15:42:59 pm

Z: (not sure where this will be placed but it is "to Z":
"Given that this public health intervention appears to have been effective, does this history establish an "actual standard?""

YES as it clearly has greater empirical evidence than does the current "witch doctoring" of masking, shutting down, distancing (only in certain circumstances and for Thee but not ME whilst I protest and riot), the politicized reporting on hydroxychloroquine (as in Arizona), the prohibition on "singing in Church: and, of course the NFL's addition wherein we find that the swapping of jerseys is prohibited to a group of 103 athletes whop have spent the previous 3.5 hours talking, swearing, and spitting at each other NOT just in close proximity but literally in each others faces AND on top of each other.
Yep, I'll take the passion play anytime.

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on July 16, 2020 at 16:08:11 pm

[D]oes this history establish an "actual standard?"

1. History does not, by itself, establish a legal standard. A legal standard would be something such as "Reject all executive orders" or "Defer to all executive orders" or "Engage in a balancing test" or "Reject orders that violate the Establishment Clause" or.... Merely citing history does not establish a standard.

2. I know nothing of Bavarian law. So, for purpose of this hypothetical, let's apply US law.

3. That said, I don't quite follow this hypothetical. It would help if you provided some more context under which a judge would be asked to resolve something.

3. For example, if the village mayor wanted to ban the play, perhaps people could bring an action for violation of Free Exercise. In that case, a judge might reject the ban for violating the Constitution. Or the judge might conclude that a balancing test was in order, comparing the alleged health risks with the health benefits of a ban, whether there are less restrictive ways to promote the governmental interest in avoiding large gatherings, etc.

4. Or maybe the mayor refused to ban the play, and citizens bring suit to compel the cancellation as a threat to public health. I'd guess a judge might apply a nuisance standard?

4. If the village mayor wanted to ban the play, perhaps God could bring an action for breach of contract. I'd guess a judge might apply a contract standard.

Am I understanding your question correctly?

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Image of nobody.really
on July 16, 2020 at 16:33:52 pm


I think that the issue here is the idea that something that is otherwise unreasonable becomes reasonable when it is balanced against something even more unreasonable. A balancing test is useful when balancing two otherwise reasonable interests, and this is the point when principles dictating judicial deference are applicable. Something that is otherwise unreasonable does not need to be subjected to a balancing test. The procodure should go something like this, using the hydroxychloroquine issue from Nevada as an example:

A patient sues to allow his doctor to prescribe him hydroxycholoroquine to treat COVID-19, because he has significant risk factors of death. He claims that Governor's order deprives him, potentially, of life without due process of law. The court first decides whether a cognizable claim has been made, i.e. a prima facie case. If a potential constitutional violation is alleged then the court would inquire into the propriety of the Governor's order; i.e. what is the authority for it, what is the purpose, and is it reasonable under the circumstances. The court does not have to, and cannot, at this stage balance the risks and benefits of hydroxychoroquine therapy, which are unknown. The Governor's order may be reasonable or not. A court may legitimately inquire as to the purpose and mechanism by which it seeks to achieve that purpose. If it is to protect the supply of the drug for other indications, the court may ask whether the supply is dangerously deficient so that some form of rationing is necessary. Evidence may be produced that COVID is an acute condition requiring a limited number of doses, whereas lupus and rheumatoid arthrits are chronic conditions requiring indefinite therapy. If the assumptions underlying the Governor's order are found by a court to be objectively false, e.g. that the supply of hydroxychloroquine is more than adequate to treat emergencies and chronic conditions, the court could, without balancing anything, find that the Governor's decision is unreasonable. It does not do what it purports to because it is based on a disproven assumption. If, on the other hand, the Government is able to defend the reasoning behind the decision, the court may, again without balancing anything, uphold the regulation. A court may defer to reasonable regulations without performing its own balancing test and substituting its own judgment, but it is not required to accept a conclusive presumption that a regulation is reasonable just because an authority makes it.

People have all kinds of beliefs: that shark cartilage cures cancer, that taking poisons that reproduce the symptoms of disease will cure those diseases if taken in small doses, that manipulation of the cervical spine will cure allergies, etc. If one of these beliefs happens to be found in an executive decision-maker,and be the basis of some emergency edict, the reasonableness of that belief is subject to judicial scrutiny. If a governor should order that all chickens in a state be slaughtered, as was done in some parts of China in response to bird flu, this order may be reasonable, if chickens are reasonably suspected of being a reservoir for the disease of concern. If however, the exact same intervention is ordered as a sacrifice to the Governor's personal deity, when chickens are not suspected of harboring the relevant pathogen, a court is entitled to inquire into the rationale, and to reject it as unreasonable.

Before doing balancing tests, which have their place, it is first prudent to ask what we do and do not know, and whether we know enough to perform a reasonable test.

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Image of z9z99
on July 16, 2020 at 16:59:45 pm


Please explain the relationship of these two statements of yours:

I don’t doubt that some courts have held some restrictions to be arbitrary—but I expect they cite actual standards,...


A legal standard would be something such as "Reject all executive orders" or "Defer to all executive orders" or "Engage in a balancing test" or "Reject orders that violate the Establishment Clause"

How do the examples of "legal standards" help establish arbitrariness? And why did you change the language "actual standards" to "legal standards" when my original comment referenced factual uncertainties?

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Image of z9z99
on July 16, 2020 at 18:13:39 pm


How do the examples of "legal standards" help establish arbitrariness? And why did you change the language "actual standards" to "legal standards" when my original comment referenced factual uncertainties?

Well, perhaps a better legal standard for “arbitrariness” is the Equal Protection standard. A judge might strike down a policy based on arbitrary distinctions. Thus, the judge would NOT say, “I reject the executive’s judgment about risk.” Instead, she’d say, “I find that X and Y pose equal risks, and are equally susceptible to regulation, but the policy does not treat them equally—so I reject the policy.” Something like that.

And yes, you have emphasized factual uncertainties. And I have emphasized that the existence of factual uncertainties does not magically relieve judges of the need to make decisions. Thus, even if we accept all your statements about uncertainty, this does not answer the fundamental question—How should a judge decide when confronted with uncertainty?

So let's stipulate that the record does not contain enough information to perform a balancing test to your preferred level of rigor. What then?

As a practical matter, I suspect a judge would defer to the elected branches. But as a matter of doctrine, I suspect a judge would at least PRETEND to apply a balancing test, because otherwise the judge would have to announce to the world that the elected branches can do whatever they like so long as they do so without an adequate factual record to permit judicial review. Thus, purely as a matter of doctrine, I'd advocate judges articulating a balancing test.

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Image of nobody.really
on July 16, 2020 at 18:44:59 pm


Ah, we seem to have reached a resolution to our discussion. You state "the existence of factual uncertainties does not magically relieve judges of the need to make decisions." I agree. I never said they did. What I did say is that factual uncertainties impair the usefulness of balancing tests, and if they are pervasive enough make such tests impractical. Judges may, as I mentioned in my reply to Gabe, still consider whether a regulation is facially unreasonable, with this determination obviating the need for a balancing test. The same applies when a plaintiff's claim has an objectively unreasonable basis. The judge may defer to the elected branches when regulations and burdens have at least an arguably legitimate rationale.

My preference is to call things as they are; if a court does not use a balancing test, or does not decide an issue on that basis, it should not claim that it did. I understand your preference for what might be termed a "constructive balancing test," but I respectfully disagree.

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Image of z9z99
on July 16, 2020 at 21:41:36 pm


Fair enough. Well summarized. Nice chatting again.

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Image of nobody.really
on July 15, 2020 at 08:10:54 am

Sometimes the inconsistency in the Data regarding Covid 19 seems like it is due to a fill in the blank approach rather than actual statistics based on accurate data:


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Image of N.D.
on July 15, 2020 at 13:15:25 pm

Abject humility as to their limited ability to fully understand and cope with the daunting tasks scientists face together with a renunciation of careerism by the scientists and their bureaucratic sponsors and flexibility, common sense and compassion by law enforcement and courts would go a long way toward mitigating the adverse social and economic impacts of the hyper-scientism and totalitarian bureaucratism which plague the nation.

Balancing tests are not the answer. They are but fake prudence, convenient intellectual exercises leading nowhere, legal devices by which judges seek to avoid personal responsibility, a modicum of humility and common sense, and mask genuine doubt with the false certainty of half-baked science while deferring authority to sanctimonious bureaucrats who will always err on the side of their own job security and are seldom right but never in doubt as to the requisites of public safety.

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Image of paladin
on July 15, 2020 at 18:30:44 pm

Huh? So how would you have decided Jacobsen v. Massachusetts?

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Image of nobody.really
on July 17, 2020 at 11:50:44 am

Great thread on "balancing" -excellent as it exposes, or rather, illumines the differing schools of thought on the Judicial role on "balancing", hereinafter termed "scrutiny". Nobody states that scrutiny has afforded the Judiciary the opportunity to make incursions into the legislative domain (my phrasing) by exercising a review for reasonableness of any legislative or executive mandate. He is quite correct. Z9 counters, properly that such "balancing" is dubious and ought to be subordinated to a review that places greater, if not all, emphasis on the law / rulemakers constitutional or statutory authority. He is also correct.
Nobody expressly recognizes the reality that Judges WILL *scrutinize* laws/ regs for reasonableness and seemingly accepts that judges a) are able to conduct such a review even in absent clear non-contradictory evidence and b) will (or at least, should) do so in a non-controversial / political manner.
I suspect that Z, not unlike myself would contest both propositions "a" and "b."
I further suspect that even nobody.really has reservations as to his "a" and "b" propositions as he has indicated that the Judicial has empowered itself to review (encroach, in my estimation) upon Legislative domains / prerogatives but also asks us to propose or formulate some alternative method / mechanism for the Judicial to exercise their own constitutional duties.
And it is a fair question! given that under the present doctrine(s) of review, a Judge may choose to exercise strict, moderate or any other level of scrutiny that he or she may determine (desire?) to be appropriate. I once alleged that some Judges employ "moderate,limited hang-out" scrutiny and not unlike our Nixonian villains of old, employ this level of scrutiny more to keep certain facts / evidence out of consideration than to legitimately resolve a controversy.
See Bostock and McGirt in recent days to appreciate the plasticity of "scrutiny", especially of the *gorsuchian* variant.
I am not optimistic as to the continuance of our constitutional norms and limitations given the ability of the judiciary to select both the various levels or review / scrutiny, even if we euphemistically refer to it as a form of Solomonic balancing when the opportunities for partisan mischief is so great. In a sense pandemic "balancing" is just another exemplar of a "balanced" Judicial grown heady and hubristic with its own arrogated powers. There may be far worse to come as the Judicial has already afforded legal equivalence between Z9' "passion Play" and Bostock's textualistic legerdemain - both are now considered to be empirically true.

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Image of gabe
on July 17, 2020 at 13:49:15 pm


Good observations. I think there are a couple of other issues though. The performance of a balancing tests implies legitimacy of the competing interests, and this is not necessarily true. To take an absurd example, if a plaintiff contested a coronavirus restriction on grounds that it interfered with his ability to distribute methamphetamine, it would seem somewhat odd if a court prefaced its ruling with "In this case we must determine whether the State's interest in public health outweighs the petitioner's interest in distributing meth." It potentially works the other direction as well, i.e. assuming legitimacy of government powers that are not otherwise legitimately conferred, simply because they are claimed and must therefore be "balanced" against uncontroverted rights. Consider for example a court saying "we must balance the authority of the government to regulate the use of double entendre on social media against the freedom of expression." These are absurd examples, but illustrate that courts should have a mechanism for dealing with them apart from dignifying them with a pro-forma balancing test.

It might perhaps be useful to consider hypothetical cases that may have arisen from actual COVID related policies. Assume for example that a nursing home resident in New York sued the state over the Governor's nursing home policy, alleging that it deprived her of a right to life. A court might reasonably begin by first determining whether the plaintiff asserts a valid interest. If so, then explore whether the State is intruding on that interest, and if so, whether that intrusion is valid. This inquiry might include examination of the state's authority to impose such regulation, whether it is reasonable, and whether the state must consider reasonable accommodations for collateral encroachments. The "reasonableness" inquiry would include the basis for the decision. When it is established that both parties have otherwise valid positions, a balancing test may then proceed. I think it at least defensible that a court would say that "non-discrimnation" is not an independent (as opposed to implementing restrictions in a non-discriminatory manner) interest that falls within the emergency authority of the state; that even if it did, the way in which it was implemented was inherently unreasonable in that it exacerbated rather than minimized the condition that the emergency policies were meant to address, ignored obvious risks in a manner that was both irrational and reckless, and was contrary to the nearly universally-accepted principle that testing for coronavirus was essential to containing the spread of disease. Only after finding in favor of the state on these points should the court undertake to balance the interests of the parties.

A similar procedure might take place in Nevada, if a COVID patient sued to allow his doctor to prescribe hydroxychloroquine to treat the disease. If an inquiring court found that the state's rationale for imposing a prohibition against such prescription was bogus, no balancing test is necessary. A person's rights do not need to be balanced against bogus government authority, bogusly exercised. These inquiries may be conducted with broad, but not blind, deference to government authority.

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Image of z9z99
on July 17, 2020 at 15:15:03 pm

Although you did not say, to a certaint extent i conflated "scrutiny" with "balancing". As a further admission, I would confess that my doing so was (perhaps only) partly intentional as i have observed, contrary to your last, and proper, statement in uour third paragraph, that many jurists DO NOT proceed in this fashion but rather proceed with a "balancing" predetermined to fins in the States favor and only then proceed to "justify the states rationale.
Clearly, some form of balancing must be undertaken, for what else does it mean to 'weigh" the evidence, both factual and statutory. I would ask only that such weighing be performed de novo and only after as you suggest a careful review of delegated authority is conducted.
I have my own example for weighing / balancing:
Local muni golf course had two maintenance employess afflicted with ChiComm flu. Neither is hospitalized nor apparently sick. Local Mayor orders the closing of the course. Since it is a municipal course, this is probably within the Mayor's power.
But what if it were a private course (which has also happened in my locale)?
Does the virus persist in open air?
Does the virus attach itself to Toro rough and greeens mowers?
Does it attach itself to any number of maintenace tools?
And has it been shown to persist?
Why not simply inform patrons that they:
a) should not operate maintenance equipment
b) should operate brush trimmers, chainsaws, etc
c) avoid the maintenance sheds
d) even insist on masks (which I hate).
In the case of the muni, let us concede statutory authority to the Mayor; BUT what about the private operator? If it can be shown that such authority exists (doubtful to my mind) then one may "balance" the restrictions against the less restrictive methods. If no such authority exists, then as the elfin character in the early "Golf Now" commercials used to say, "Let's Play."
There is another factor to consider as a friend and Superintendent of Golf at another muni told the Mayor, "It is easy to convert a golf course into a goat pasture; it is rather difficult to convert a goat pasture into a golf course." This Mayor listened and did not prevent maintenance personnel from working during the initial shutdown. The other Mayor in this latter instance has prevented all employees from working.
Do we leave this up to the Judicial to decide?
OR, do we finally insist that those agents constitutionally authorized to weigh and balance competing claims actually perform their duties. I am, of course, referring to that rapidly disappearing and increasingly inconsequential branch of government known as the Legislative.
I think far more "controversies can, and OUGHT to be resolved via the Legislative and that includes Bostock issues, Roe issues, McGirt, etc etc etc.
Would someone please wake then up?

take care
now back to the grandkids as they are awakening from thier nap.

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Image of gabe
on July 18, 2020 at 13:55:10 pm

Good stuff!
I have two problems with "balancing," both of which render it a mere charade in the hands of state and local officials currently Wuhan Virus "balancing" as a means to regulatory ends: the balancing is invariably political, as in liquor stores and riots are not intolerable risks and church services, funerals and visiting the terminally ill are intolerable risks, and the balancing is invariably half-ass, as in the current failure to assess the costs of lock-down, impacts on health, economic well-being and national security which are readily identifiable, easily quantifiable and routinely ignored.

Both deficiencies can be seen in a case study with which I am personally/professionally familiar, that involving EPA's decision in 1972 to ban the insecticide DDT: After an adjudicatory hearing lasting many weeks involving contested scientific and economic issues of fact EPA's Administrative Law Judge decided, based on the evidence, that the clear benefits of DDT substantially outweighed the speculative risks, and he denied EPA's request to cancel DDT's registrations and approval for agricultural use. The Administrator of EPA reversed that decision. I would argue that he did so for political reasons. I say that because I am aware of no evidence supporting his decision to throw out the decision of the trier of fact. The EPA Administrator did so without hearing any evidence, reviewing any new evidence or disputing any findings of fact relied upon by the trier of fact, to whom he gave no deference, contrary to normal appellate practice.

The U.S. ban on DDT's agricultural uses precipitated a Third World domino effect which led to banning it for mosquito control, which, in turn, caused a public health catastrophe which, by now, has caused the malaria deaths of millions. Bad ideas have bad consequences. Using inadequate cost-benefit balancing as a scientific facade for politically-driven outcomes is, in my experience, the bureaucratic rule, not the exception.

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Image of paladin
on July 21, 2020 at 09:22:24 am

The pandemic become a hectic. Coronavirus becomes such a dreadful issue that no one can be safe from. Don't know when will it be end.

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Image of Anthony Constantinou
Anthony Constantinou

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