Imagine if, in the spring of 2020, Wisconsin’s public health agencies had needed to get permission from the state’s heavily gerrymandered, GOP-controlled legislature before they could implement policies intended to prevent the spread of Covid-19.
That’s the sort of future that a raft of recent court decisions, including two handed down last Friday, could be setting the country up for — one where the government has limited ability to fight this pandemic and any others that arise.
The first court decision, written by a Donald Trump appointee to the United States Courts of Appeals for the Ninth Circuit, imposes strict limits on California’s ability to close down in-person instruction at private schools. Judge Daniel Collins’s opinion in Branch v. Newsom claims that such restrictions run afoul of parents’ rights “to direct the upbringing and education of children under their control.”
(All of the relevant schools in Branch are currently allowed to hold in-person classes, but the Ninth Circuit’s order prevents California from imposing many new restrictions even if the pandemic worsens and public health officials believe that they need to limit in-person gatherings to prevent outbreaks.)
Then, in Florida v. Becerra, the 11th Circuit reinstated a lower court order blocking various rules handed down by the Centers for Disease Control and Prevention (CDC), which are supposed to help prevent cruise ships from becoming incubators for Covid-19. (Although most of the judges on the panel that heard Florida were appointed by Democratic presidents, the outcome in that case was likely controlled by a recent decision handed down by the conservative Supreme Court.)
The decisions in Branch and Florida, moreover, are part of a wave of decisions — mostly handed down by Republican appointees or by judges who ran for election as conservatives — that could permanently hobble the government’s ability to address future public health crises.
In May 2020, for example, four Republicans on the Wisconsin Supreme Court stripped that state’s Department of Health Services of much of its authority to close businesses and limit public gatherings. Notably, the deciding vote in this case, Wisconsin Legislature v. Palm, was cast by lame duck Justice Daniel Kelly, who’d recently lost his seat in a nearly 11-point landslide.
Almost immediately after the court’s decision in Palm, bars throughout the state reopened — many of them packed with unmasked patrons celebrating in close quarters months before Covid-19 vaccines became available. By October, Wisconsin had one of the worst Covid-19 outbreaks in the country.
The US Supreme Court also imposed tight restrictions on many state and federal public health agencies. Shortly after Justice Amy Coney Barrett’s confirmation gave conservatives a 6-3 supermajority, the Court started handing down decisions preventing state governments from limiting in-person gatherings at churches and other houses of worship.
Late last month, the Supreme Court decided to let a federal eviction moratorium — which was enacted to prevent people kicked out of them homes from spreading Covid-19 — to remain in effect until it expires at the end of July. But Justice Brett Kavanaugh wrote a brief opinion suggesting that the CDC may never impose such a moratorium again under existing federal laws.
These court decisions are not happening in a political vacuum. According to the Washington Post, “at least 15 state legislatures have passed or are considering measures to limit the legal authority of public health agencies.” If these state legislatures pass these bills into law, that is their right. Elected lawmakers have the power to enact unwise laws.
But it is not the job of the courts to rewrite laws that their favored political party disagrees with. Nor is it their job to invent novel and often outlandish constitutional limits on public health agencies. Many of the court decisions restricting public health agencies aren’t just harmful because they could enable the spread of a deadly disease, they are also an end-run around democracy.
And many of these limits on public health officials are likely to permanently hobble the nation’s public health agencies.
Congress and state legislatures gave public health agencies very broad powers for a reason
Let’s make one thing clear before we dive too deep into the recent court decisions: Public health officials, like nearly all executive branch officials at the state and federal level, can rarely act without legislative approval. But Congress and a number of states have already passed an array of laws giving certain powers to the CDC and other public health agencies — including broad authority to respond to a public health emergency.
So, when courts limit public health officials’ power under these existing statutes, they are altering the legal regime set up by democratically elected lawmakers.
Many of these existing laws are broadly worded to give public health agencies expansive power to arrest the spread of a deadly disease. Federal law, for example, gives the CDC power to “make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.”
Similarly, the Wisconsin law at issue in Palm gives the state’s health department the power to “close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics” and to “authorize and implement all emergency measures necessary to control communicable diseases.”
It is a little unusual for a legislature to give such open-ended authority to an agency, but there are very good reasons to do so in the public health context. It’s impossible to know in advance how to respond to a public health crisis, so officials need to have broad authority to adapt to unpredictable events.
As Covid-19 taught us, infectious diseases can spread exponentially — so a small outbreak in, say, a single neighborhood in Milwaukee can rapidly grow to infect thousands or even millions unless state officials act swiftly to contain it. If no public health agency has the power to act quickly, the outbreak is likely to spread beyond the point of containment before the state legislature can act.
Public health agencies also need to make these calls in an ever-shifting environment. Even if there were no Covid in Milwaukee today, it might arrive tomorrow. And, if an agency successfully suppresses an outbreak in one community, it may make sense to lift some of the localized restrictions that quashed that outbreak — then reimpose them if a new threat emerges.
At oral arguments in Palm, attorney Colin Roth, who represented the state health department, offered a helpful analogy: Imagine that a massive wildfire was tearing through the state of Wisconsin.
In order to combat such a fire, the government could have to take several actions that would impose severe burdens on many Wisconsin residents. It may need to close highways and businesses to keep people out of the way of the fire. Firefighters may even need to create a firebreak by cutting down large swaths of forests, or even demolishing buildings in order to deny fuel to the growing inferno.
“The Covid-19 virus is a wildfire that is spreading across the state,” Roth told a hostile bench dominated by Republicans, and the state health department “is the fire department.”
It would be inane to require firefighters to get legislative approval for each highway they closed, or for each tree or building that they destroyed, in order to prevent the entire state from going up in flames. And, for the same reason, it would be equally inane to require the state legislature to micromanage the state’s response to a pandemic. Sometimes, a state encounters a crisis that cannot be addressed if it waits for hundreds of elected lawmakers to debate the problem and come up with a solution.
And yet, conservative judges are increasingly hostile to the view that public officials may exercise meaningful authority without constantly seeking approval from the legislature.
Why these court decisions could permanently disable our response to the next pandemic
The court orders limiting public health agencies’ powers typically fit into two different boxes. The first box consists of orders imposing novel constitutional limits on these agencies. Think of the Supreme Court’s decisions requiring public health officials to exempt churches and other places or worship from many pandemic restrictions — decisions that revolutionized the Court’s approach to “religious liberty.” Or the Ninth Circuit’s opinion in Branch, claiming that the Constitution protects the right of parents to send their kids to in-person classes at private schools.
The second box of cases arise out of a growing belief among conservatives that executive branch agencies should never be given broad authority to exercise policy discretion. In Palm, for example, Republicans on the Wisconsin Supreme Court required the state health department to jump through a series of procedural hoops that take weeks to complete in order to exercise many of its public health powers, and it gave a committee within the state’s highly gerrymandered legislature the power to suspend many of the department’s actions.
In a concurring opinion, Justice Rebecca Bradley compared the state health department’s order temporarily closing many businesses at the height of the pandemic to “the internment of Japanese-Americans during World War II.” She also described a system where a state agency can make swift public health decisions — even if it does so pursuant to an act of the state legislature — as a “tyrannical concentration of power.”
In other cases, courts have read statutes very narrowly in order to confine public health agencies’ power. Consider, for example, Alabama Association of Realtors v. HHS, the US Supreme Court case involving the CDC’s eviction moratorium.
To understand this case, it’s helpful to quote the relevant federal statute at some length. That statute gives the CDC authority to make regulations “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” It also includes a non-exhaustive list of ways that the CDC may exercise this power, including by providing “for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings.”
Republican officials, however, have urged the courts to read this non-exhaustive list as if it were a limitation on the CDC’s power to fight communicable diseases. Under this approach, the CDC’s authority would be limited to activities such as “inspection, fumigation, disinfection, sanitation, pest extermination, [and] destruction of animals or articles.”
And, while the Court’s order in Alabama Association of Realtors is brief and does not fully explain its reasoning, Kavanaugh’s concurring opinion suggests that at least he agrees with this narrow reading. He wrote that he shares the plaintiffs’ belief that “the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium.”
The courts, in other words, are imposing new constitutional limits on public health agencies. They are limiting legislatures’ power to give discretionary authority to public health officials. And they are reading public health statutes in unnatural ways to limit the government’s power to fight deadly diseases.
These are not the sort of court decisions that can be easily overcome by legislatures. Even if Congress or a state legislature attempted to override these court decisions, the sort of judges who would hand down decisions like Palm or Alabama Association of Realtors — decisions that curtail powers that lawmakers already granted — are unlikely to allow lawmakers to re-expand public health agencies’ power very far.
Many of these public health decisions are very poorly reasoned
Several of these decisions limiting public health officials’ power are haphazardly written. They give contradictory instructions to state officials. Or they fail to consider the implications of their own reasoning.
In some cases these errors are relatively minor. In Palm, for example, Chief Justice Patience Roggensack wrote the Court’s majority opinion holding that the court’s decision takes effect immediately, but she also wrote a separate concurring opinion stating that “although our declaration of rights is effective immediately, I would stay future actions to enforce our decision until May 20, 2020” — about a week after the Court’s decision. That sparked immediate confusion about whether the court’s decision took effect right away or not.
In other cases, however, judges appear to be so eager to impose limits on public health officials that they invent legal rules that are utterly nonsensical.
Consider the Ninth Circuit’s decision in Branch, the case holding that parents have a constitutional right to send their children to in-person classes at private schools. As mentioned above, Judge Collins rooted his opinion in a constitutional right of parents “to direct the upbringing and education of children under their control,” and there is some basis for courts to enforce such a parental right — but not to read it as expansively as Collins did in Branch.
In Meyer v. Nebraska (1923) the Supreme Court struck down a state law forbidding teachers from teaching “any subject to any person in any language other than the English language.” And, in Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary (1925), the Court struck down a law requiring parents to send their children to public (not private) school. Both decisions were rooted in the idea that the 14th Amendment gives parents a limited right to decide how their children will be raised and educated.
But this right cannot be unlimited. Suppose that a parent wishes to send their child to a private school run by white supremacists, or one that would train their heir to become a child solider in an insurrection against the United States government, or one that refuses to teach math to girls. Or suppose that a parent chooses not to educate their child at all, preferring to keep the kid at home to perform menial labor. Or that a parent rents their child to a cotton mill that produces cheap textiles.
Collins attempts to square this circle by arguing that “historical practice and tradition confirms” that parents must be allowed to send their children to in-person classes. “As historically understood,” Collins writes, “the Meyer-Pierce right necessarily embraced a right to choose in-person private-school instruction, because ... such instruction was until recently the only feasible means of providing education to children.”
But, if parents are allowed to raise their children however they want, so long as their decisions comport with the “historical” understanding of Meyer and Pierce, then parents would have a constitutional right to engage in all sorts of abhorrent practices. The Supreme Court, for example, did not permit Congress to ban child labor until 1941 — 16 years after Pierce — so the historical understanding of that decision could permit parents to rent their children to cotton mills. Similarly, it was hardly unusual for schools, especially in the segregated South, to teach white supremacy when Meyer and Pierce were handed down.
In his apparent zeal to limit the power of public health officials, in other words, Collins handed down a legal rule that simply makes no sense. He would give parents a constitutional right to engage in destructive or genuinely cruel parenting, so long has that sort of cruelty was common at some ambiguous point in American history.
Moreover, to the extent that Meyer and Pierce could ever have been read to give parents an absolute right to send children to in-person classes during a public health emergency, more recent Supreme Court decisions read those cases far more narrowly. As the Court held in Runyon v. McCrary (1976), “the Court in Pierce expressly acknowledged ‘the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils.’”
Conservative judges appear to be inventing new, unworkable legal rules on the fly. And, even if Covid-19 is someday eradicated, these new rules are likely to linger for decades or even centuries — sabotaging the nation’s response to the next pandemic in the process.