115-year-old case does heavy lifting on coronavirus constitutional questions, says Berkeley law dean

Novel legal questions, especially regarding limits on government entities shuttering businesses and canceling events, actually have answers in numerous precedents, UC Berkeley Law Dean Erwin Chemerinsky said in a wide-ranging Zoom presentation Monday.

Some of that case law has rarely come up in recent decades, Chemerinsky acknowledged, adding there is “broad government power to stop communicable disease.” Under these powers, he said, it does appear governments have the ability to do things like shut down in-person religious services or temporarily close gun stores and other businesses.

But he also noted significant limits on governmental power. For instance, he said, it appears likely that governors do not have the authority to order their citizens or those from other states not to cross state lines. Many of the relevant limits on state power will likely be invoked through the equal protection clause of the U.S. Constitution. A quick search for Supreme Court precedents involving pandemics and quarantines won’t produce a lot of results, Chemerinsky said, but there is one case more than a century old that is doing a lot of heavy lifting these days.

“Courts have consistently read Jacobson v. Massachusetts as giving to the government broad power to order vaccinations to stop the spread of communicable disease,” he said.

A remnant from a time when smallpox still ravaged the country, Jacobson v. Massachusetts, 197 U.S. 11 (1905) has been successfully used to uphold a variety of methods used to fight pandemics, including quarantines.

Chemerinsky said governments appear to be on solid legal ground as long as restrictions are evenhanded. As an example, he cited vaccination laws. Many state vaccination laws have included religious exemptions, but ones that don’t will still survive as long as they don’t favor one religion over another.

Chemerinsky brought up a current case out of Kentucky in which a mayor appeared to specifically ban Easter celebrations as problematic.

Such discussions are likely to become increasingly relevant. For instance, over the weekend a spokeswoman for the U.S. Department of Justice tweeted that restrictions on gatherings must “not single out religious orgs” and hinted the agency may act to protect churches.

Chemerinsky said there has been a fair amount of confusion about the rules involving religious services in different states. For instance, in some cases people have alleged attempts by governors to ban drive-through or drive-by services though such bans could be problematic if enacted. In one city, police ticketed churchgoers sitting in their cars in the sanctuary parking lot and in another police took down license plates of cars on church property saying the owners would face quarantines in their homes.

“The ability of the government to quarantine is not unlimited,” Chemerinsky said. “Courts say it must be reasonably used. I have been able to find cases earlier in American history and earlier in California history that found quarantines were not reasonable.”

He pointed to cases in which authorities sought to shut down part of a city that happened to be mainly populated by a disfavored racial minority.

On another recent question — the interplay between state and federal authority — the dean saw less ambiguity. For instance, under the federal Public Health Act of 1944 and other relevant laws, only the federal government can limit movement into the country and between states, even as some governors have talked about keeping people from certain areas out.

But states still have a lot of power under federalism. One key example is states have the main role in fighting a pandemic, and he said his view is President Donald Trump lacks to authority to order businesses back open.

“The federal government can’t preempt state closure orders,” Chemerinsky said.