Four Justices on the Texas Supreme Court just fired a shot across the bow of government officials continuing draconian COVID-19 restrictions in Texas. In a concurring opinion, Justices Blacklock, Guzman, Boyd, and Devine reminded everyone that the “Constitution is not suspended when the government declares a state of disaster.”
“As more becomes known about the threat and about the less restrictive, more targeted ways to respond to it,” the opinion continued “burdens on constitutional liberties may not survive judicial scrutiny.” This opinion was a message—the Constitution still applies, and the courts will enforce it.
Such a message should be unnecessary. At the height of the Civil War, the U.S Supreme Court sternly rejected even minor alterations to criminal procedure to accommodate the crisis, noting that the Constitution applies “at all times and under all circumstances” and that “[n]o doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.”
More recently, during Hurricane Katrina, a federal district court rightly recognized that restrictions on the freedom of movement are subject to the highest level of constitutional scrutiny, even during a Category 5 hurricane.
Unfortunately, the message bears repeating. As the current pandemic has continued, pundits, politicians, and even judges have behaved as if there is a pandemic exception to the Constitution. Public health has been used as an excuse to justify the closure of all “non-essential” businesses in counties where there hasn’t been a single reported case of COVID-19, closure of churches, restrictions on leaving the home, and even the arrest and jailing of hairdressers.
Supporters of this unlimited pandemic authority point to language from the United States Supreme Court’s 1905 decision in Jacobson v. Massachusetts, which held that state and local governments have broad constitutional authority to adopt rational public health measures like vaccinations. But Jacobson dealt with whether government had the authority to enact public health measures at all. The court in Jacobson explicitly left open the possibility that such health measures could run afoul of the Constitution, if they restricted fundamental rights like the freedom of assembly or the right to private property.
The Court in Jacobson noted further that it had a duty to examine the record to ensure that government’s claims of emergency powers were legitimate. If health regulations “went beyond the necessity of the case and under the guise of exerting a police power …violated rights secured by the Constitution” the court would be bound “to hold such laws invalid.” In other words, even Jacobson does not create the pandemic exception to the Constitution that some seem to believe it does.
Of course, saying that the Constitution still applies in a pandemic does not mean that governments can do nothing to fight COVID-19. It simply means that when fundamental rights are infringed, it is the government—not citizens exercising their liberties—that bears the burden of establishing that the restriction is necessary. As the four Texas Supreme Court Justices note, “Any government that has made the grave decision to suspend the liberties of a free people during a health emergency should welcome the opportunity to demonstrate—both to its citizens and to the courts—that its chosen measures are absolutely necessary to combat a threat of overwhelming severity” and that “less restrictive measures cannot adequately address the threat.”
That is Constitutional Law 101. Unfortunately, it appears that local governments need a refresher course. At least four members of the Texas Supreme Court have put those governments on notice that should local government overreach continue, the Court is willing to intervene in defense of our fundamental rights and the Constitution.