Lawsuits challenging governors’ and mayors’ public health orders issued in response to the COVID-19 pandemic have been filed across the United States, yielding mixed judicial outcomes. This legal analysis examines the varied results, referencing a specific case in Maryland and contrasting it with decisions in other states.
Grounds for Judicial Success and Failure
The success or failure of challenges to executive orders often hinges on the specific authority granted to a state’s chief executive under state emergency laws.
In several jurisdictions, including Wisconsin, Oregon, and Ohio, challengers successfully convinced courts that governors had exceeded their statutory authority. These rulings sometimes pointed to provisions in state emergency laws that mandate legislative approval for the extension of an emergency order.
In contrast, the legal challenge (sometimes referred to as the “Reopen” suit) filed in Maryland was rejected. One rationale for this distinction lies in Maryland’s statutory framework, which grants its governor broader emergency powers than many other states. A key consideration cited was that the Maryland General Assembly is not a year-round legislature. The court found it was not the legislature’s intent to require the General Assembly to reconvene frequently during an active pandemic to approve or disapprove executive public health orders. Consequently, the Maryland court determined that the governor had not overstepped the bounds of Maryland law.
First Amendment Challenges to Public Health Orders
Another frequent basis for litigation involved claims that governors’ orders were overly restrictive of religious gatherings. These claims, too, have seen varied success, but they failed in the Maryland case.
Federal courts assessing such claims apply a standard derived from the Supreme Court’s 1990 decision in Employment Division v. Smith, articulated by the late Justice Antonin Scalia. Under this standard, a neutral and generally applicable law that incidentally burdens religious practice does not violate the U.S. Constitution’s Free Exercise Clause, provided that:
- The law is not improperly motivated by an intent to restrict religion.
- The law does not arbitrarily restrict religious activity while genuinely similar non-religious activity is permitted.
Challengers often argued that if stores selling goods such as hardware (e.g., plywood) or soft drinks were permitted to remain open, all other gatherings, including religious services, must also be allowed. However, courts, including the federal court in the Maryland litigation, have consistently rejected this argument. The judiciary has often distinguished between types of activities based on their associated risk. For instance, the judge noted that government guidelines often designate the sale of food and essential supplies as critical. Furthermore, the limited duration of a shop-and-leave arrangement can be rationally distinguished from a gathering whose core purpose is for individuals to congregate closely for an extended period, a factor that has contributed significantly to COVID-19 outbreaks both domestically and internationally.
Further Resources on Emergency Authority
For those interested in exploring this topic further, various resources provide additional perspective on “Reopen” litigation and the underlying legal authorities:
- Lawfare resources offer detailed analyses of state emergency authorities and quarantine/isolation laws.
- The National Conference of State Legislatures (NCSL) provides information on the scope of state law authority during an emergency.
