Courts Find That Governors Enjoy Broad Police Power to Limit Private Activities in a Pandemic

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Across the country, state and local governments have responded to the coronavirus by limiting in various ways normal activities that were part of everyday life before the outbreak. A battery of lawsuits in state and federal courts have challenged these limits on constitutional grounds.

The United States Supreme Court weighed in on one such limit last week, denying by a 5-4 vote a San Diego church’s emergency application to enjoin enforcement of California’s reopening plan. See South Bay United Pentecostal Church v. Newsom. The plan authorized places of worship to reopen in San Diego County, but imposed a 25% occupancy cap and a maximum of 100 attendees. The church claimed that the plan violated the Free Exercise Clause of the First Amendment.

Writing for a five-justice majority (including Justices Breyer, Ginsburg, Kagan, and Sotomayor), Chief Justice Roberts explicitly recognized the states’ broad authority to respond to the coronavirus: “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 those officials undertake to act in areas fraught with medical and scientific uncertainties, their latitude must be especially broad.” Dissenting Justices Alito, Gorsuch, Kavanaugh, and Thomas would have held that California’s reopening plan discriminated against religion.

The Supreme Court’s deference to state government mirrors a recent Pennsylvania Supreme Court decision holding that Governor Wolf’s shutdown orders requiring closure of non-essential businesses did not violate the Takings Clause of the Pennsylvania Constitution.

Just last week, three commercial New York landlords challenged yet another coronavirus order in federal court, alleging that Governor Cuomo’s orders staying initiation and enforcement of eviction actions violate the Contracts, Takings, and Due Process Clauses of the United States Constitution. See Elmsford Apartment Associates, LLC v. Cuomo. Unlike the orders at issue in South Bay and DeVito, which focus on the health and safety effects of the pandemic, the orders challenged in Elmsford Apartment Associates address certain economic effects of the pandemic, namely job losses by tenants that may prevent them from making timely rent payments. It remains to be seen if the landlords will be any more successful than the litigants in DeVito and South Bay, but those decisions suggest that plaintiffs face an uphill battle in asserting constitutional challenges to state and local orders that limit individual and corporate rights during the pandemic.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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