Brian Hutler (Temple University) has posted Public Health Deference: Rethinking the Judicial Enforcement of Constitutional Rights during a Pandemic (Syracuse Law Review, Vol. 73, No. 1, 2023) on SSRN. Here is the abstract:
Jacobson v. Massachusetts has long stood for the proposition that courts should generally uphold the government’s public health policies even when they incidentally infringe constitutional rights protections. But the COVID-19 pandemic disrupted this traditional understanding, as many federal courts struck down or enjoined state and local pandemic-response policies, downplaying the applicability of Jacobson. Meanwhile, prominent legal scholars argued that judicial deference premised on Jacobson should be completely abandoned. This article argues that Jacobson must be reconsidered in light of COVID-19, but its posture of deference should not be abandoned. Instead, this article proposes a new theory of “Public Health Deference,” which is the deference that courts should afford to the government’s pandemic-response policies. This article argues that Public Health Deference should be premised on the quality of the processes by which the government creates and implements public health policies, even during an emergency. Courts should not blindly defer to the government’s pandemic response; instead, they should evaluate the government’s decision-making processes to ensure that they meet standards of transparency, accountability, public justification, and community engagement.