What's Wrong, But Also What's Right, About the District Court Ruling Invalidating Pennsylvania's Public Health Measures
by Michael C. Dorf
On Monday, Federal District Judge William Stickman IV ruled that public health actions by Pennsylvania Governor Thomas Wolf--most centrally a stay-at-home order and business closures during the most acute phase of the COVID-19 pandemic--were unconstitutional infringements on liberty and, in one instance, a denial of equal protection. The ruling in County of Butler v. Wolf generated considerable news coverage, much of it in a partisan frame: a Trump-appointed judge who was confirmed on a close-to-party-line vote seemed to say that the arch-conservative 1905 decision in Lochner v. NY remains good law, and in so doing vindicated GOP resistance to coronavirus-fighting measures by a Democratic governor.
I have good news and bad news. The good news is that the opinion is more thoughtful and well-reasoned than it has been portrayed. The bad news is that it is nonetheless wrong on a number of key points. In this essay, I'll first describe what Judge Stickman gets right before turning to what I regard as his errors.
(1) Mootness. Like most states, Pennsylvania has considerably eased the restrictions that it imposed in March and April. Nonetheless, Judge Stickman correctly holds that the case is not moot, because the easing of the restrictions is contingent on the course of the pandemic.
(2) Vitality of Jacobson. The leading SCOTUS decision on the constitutionality of state public health measures is Jacobson v. Massachusetts (1905), which upheld mandatory vaccination for smallpox. The case shows great deference to state authorities with respect to public health decisions. There is a question whether Jacobson remains good law, given the substantial expansion of individual liberties, including a line of cases involving the right to bodily autonomy, in the intervening 115 years. Citing, among other things, the dissent of Justice Alito (joined by Justices Thomas and Kavanaugh) in the July 2020 case of Calvary Chapel v. Sisolak, Judge Stickman suggests that Jacobson has no more force. That's odd, first because Justice Alito was, after all, dissenting, and second, because lower court judges are supposed to follow old decisions that have not been overruled by the SCOTUS, even if they have been undercut by other rulings.
I discussed and criticized the follow-old-precedent rule in a blog post last month, even using a hypothetical example based on Jacobson (life imitates my blog!). Although I'm not a fan of the no-anticipatory-overruling rule, it is the law. Did Judge Stickman improperly anticipatorily overrule Jacobson? The short answer is no. The rule applies to cases that fall squarely within the old precedent's holding, and the orders at issue in the Pennsylvania case differ sufficiently from a mandatory vaccination order to fall outside Jacobson's scope.
In any event, I think Judge Stickman gets the basic framework right. He says that in the early stages of a public health crisis, there may be room for broad deference to public health decisions of government officials, but months into the crisis, ordinary principles of constitutional law apply. He says--and I agree--that those ordinary principles provide ample room for crediting government efforts that address serious problems.
(3) Assembly/Speech Level of Scrutiny
Judge Stickman first considers how the PA limits on gatherings infringe on free speech and freedom of assembly. He says that the limits are at least formally content-neutral, although he does suggest that in application they're content-based, noting that at one point the Governor himself participated in protests against excessive/race-based use of force by police; those protests, Judge Stickman says, violated the Governor's own restrictions. However, the judge does not rely on that fact to conclude that the restrictions are content-based in practice. Rather, he treats them as content neutral and "akin to time, place, and manner restrictions." He therefore applies the intermediate scrutiny that the SCOTUS cases say applies to such restrictions.
So far, so good. I agree that the gathering restrictions are not content-based. Indeed, to my mind, they're not even necessarily infringements on speech at all, because they don't aim at expressive association but at all gatherings. However, I think it a fair reading of various SCOTUS cases to say that the application to expressive gatherings of a law targeting gatherings is a regulation of expression, albeit a content-neutral one.
But now the problems start.
(4) Narrow Tailoring
Judge Stickman's first arguable error is not so much his fault as it is the fault of the Supreme Court, which has confusingly said that time, place, and manner restrictions must be "narrowly tailored," even as it has also characterized the standard for evaluating content-neutral ones as intermediate scrutiny. That's confusing because the Court has also characterized the means-end fit required by strict scrutiny as a requirement of "narrow tailoring." Careful readers of the case law understand that intermediate-scrutiny narrow tailoring is less demanding than strict-scrutiny narrow tailoring, which has generally been understood as a least-restrictive-means requirement. Under intermediate scrutiny, the means-ends fit required is typically described as a requirement that the restriction "substantially advance" the government interest.
Judge Stickman quotes SCOTUS language that is suggestive of both the least restrictive means test and the substantially advances test. As a technical matter, he could be said to apply the more forgiving intermediate scrutiny version, but I read his parsing of the restrictions as something stricter. I hesitate to say that he errs exactly in finding a violation of intermediate scrutiny. When I looked into the literature a number of years ago, I found that the lower courts pretty routinely applied intermediate scrutiny in time, place, and manner cases more strictly than the Supreme Court itself did. So his error, if there is one here, seems to be the common error of taking the Court's own words too seriously. I'll call the application of the narrow tailoring test arguably wrong but not clearly wrong.
(5) Characterization of the Orders
Judge Stickman next considers the validity of the stay-at-home order, which he characterizes as an unprecedented lockdown. To his credit, he says that unprecedented doesn't necessarily mean unconstitutional. Less to his credit, he says some other dubious things, beginning with his characterization of the order as a "lockdown" modeled on the Wuhan approach. Yet neither Pennsylvania nor any other US jurisdiction imposed movement restrictions nearly as restrictive as those imposed in Wuhan or, for that matter, in Italy or Spain when the virus was surging there in February and March. So right off the bat, there is some hyperbole.
Judge Stickman also offers an unfavorable comparison of the public health measures with those undertaken to combat the Spanish flu (H1N1). If stay-at-home orders of people who didn't appear to be sick weren't necessary in 1918, why are they necessary today? The answer, which Judge Stickman does not even consider, is epidemiological. In 1918 it was believed--and it has since been confirmed--that asymptomatic carriers played a very insubstantial role in spreading H1N1. By contrast, people infected with but not yet (or never) symptomatic are a key vector in COVID-19 spread. That fact alone should justify population-based measures to combat COVID-19 spread that would be unjustified to combat the Spanish flu.
There are similar and compounding errors. For example, Judge Stickman says that the stay-at-home order is not a "quarantine" because it doesn't fit the Pennsylvania legal definition of quarantine; yet, whether it does or not should have no bearing on whether it violates a federal constitutional right. Further, Judge Stickman says the order was contrary to guidance issued by the CDC in 2017, but of course, in 2017, COVID-19 did not exist as a disease in humans, so nothing the CDC produced then could be especially relevant to the appropriate public health response in 2020. And of course, the overwhelming evidence from East Asia, Europe, New Zealand, and other places that actually imposed stricter restrictions than Pennsylvania did is that such measures were highly effective in saving lives.
Judge Stickman's apparent misunderstanding of the basic public health rationale for the Pennsylvania orders led him, I believe, to under-count the state's interest, which ought to have been sufficient to justify the admittedly serious infringement on individual liberty that stay-at-home orders constitute.
(6) Economic Rights
By far the most egregious legal error in Judge Stickman's opinion is his invalidation of the state's restrictions on "non-life-sustaining" businesses. He is pretty clearly right that the state could have and should have done a much better job of articulating how it determined whether a business was or was not life-sustaining, and thus allowed to operate during the most acute phase of the restrictions. But since the repudiation of Lochner in the late 1930s, it has been hornbook constitutional law that merely unwise state decisions are not ipso facto unconstitutional.
Judge Stickman pushes back hard against modern constitutional law. He acknowledges that Lochner is no longer good law, but says that the "Supreme Court has never repudiated the recognition that a citizen has the right to work for a living and pursue his or her chosen occupation." Really? Does an optician have a right to work for a living by fashioning new eyeglasses based on an old prescription? Not according to Williamson v. Lee Optical. Does a non-lawyer have a right to work as a debt adjustor? Not according to Ferguson v. Skrupa. These and numerous other cases establish that economic regulations--even ones that make whole categories of work illegal for large groups of people--are constitutional unless they lack a rational basis.
Judge Stickman sort of cites that standard but applies it with considerably less deference than is characteristic of the modern era. He says that Pennsylvania's distinction between "life-sustaining" and "non-life-sustaining" businesses is "so arbitrary as to violate the Business Plaintiff's substantive due process rights." He gives reasons that might make out a persuasive case that the Pennsylvania laws would fail something like arbitrary-and-capricious review under the Administrative Procedure Act, but rational basis review of business regulations under due process and equal protection is supposed to be considerably more deferential than APA review.
Consider Judge Stickman's chief example. He notes that Pennsylvania allowed big-box retailers like Lowes, Home Depot, and Walmart to remain open while closing "a small appliance and furniture store . . . selling the same products." He goes on to note how the distinction is perverse, because fewer people would congregate in a small mom-and-pop store than in the big-box store.
But that's not how rational basis scrutiny works. A judge is supposed to ask whether any rational basis for the distinction can be conceived. Here are three: (1) Those big-box stores sell a lot more stuff, including some stuff that a small appliance and furniture store doesn't, such as groceries in the case of Walmart, so allowing them to remain open will mean fewer stops for each shopper. (2) As to congregation, the big-box stores are, well, bigger, so it may actually be easier to practice social distancing in them. (3) The big box stores tend to have high ceilings and better ventilation than smaller stores. Does any of these factors suffice to show that Pennsylvania drew the right line? Without knowing a whole lot more, we cannot say. But again, to satisfy rational basis scrutiny, a regulation need not be proven effective or even sensible, just conceivably rational. No regulation fails traditional rational basis scrutiny because it will always be possible to imagine circumstances in which any regulation the government bothers to impose and defend is rational.
Judge Stickman is not wrong to have sympathy for the owners of businesses that have been crushed by the pandemic and the public health response. He is wrong to confuse that sympathy with constitutional law.