In late 2019, the first cases of COVID-19, a highly contagious disease caused by the novel coronavirus, or SARS-CoV-2, were diagnosed in Wuhan, China. Initially viewed by some as a localized problem that could be quickly quarantined, COVID-19 instead became a worldwide pandemic, the likes of which the world had not seen since the 1918 pandemic, or the “the Spanish flu.”
By March 2020, a U.S. economy that had in late 2019 reached record-low levels of unemployment, including among the African-American and Latino communities, was thrown into reverse. By April, unemployment in the United States had reached levels not seen since the Great Depression, and the Dow Jones Industrial average had fallen from a record high of nearly 30,000 to a low just over 19,000, helping to destroy an estimated $43 trillion in worldwide wealth.
A primary cause was a combination of individual apprehension about unnecessary movement and executive orders, largely enacted by state governors in at least 42 of the nation’s 50 states (plus Puerto Rico and the District of Columbia), to restrict movement and economic activity.
As the number of people testing positive for exposure to the coronavirus and the deaths attributed to the virus climbed, “stay in place” or “lockdown” orders initially set to expire within weeks were repeatedly extended in nearly all jurisdictions that issued them. The Illinois Gubernatorial Disaster Proclamation, for example, which initially expired April 7, 2020, was subsequently extended to Aril 30, then May 31, then June 15; at this writing, with loosened restrictions, it remains in effect.
Two common features of these orders are the designation of businesses as “essential” or “non-essential,” with the former being allowed to remain open and the latter being forced to close indefinitely, and a prohibition of gatherings of more than a few non-family members. Without a clear consensus on how the virus originated, exactly how it was spread, or even how lethal it might be, proponents largely cited “science” or “data” in support of such orders.
“Businesses ‘know their industry better than any elected official will know their industry,’” Illinois Governor J. B. Pritzker admitted on June 15. But, according to a Chicago Tribune story published the next day, the governor said that he will continue to “consult with scientists” about how best to ease restrictions. Governors and their staffs had correspondingly little to say about their legal or constitutional authority to enter or extend those orders.
Concomitantly, plaintiffs in substantially all fifty states have now brought lawsuits challenging those orders. These suits fall into six major categories: (1) prisoners seeking release from crowded jails while awaiting trial and illegal immigrants challenging their detention while the virus rages; (2) church-going citizens, pastors, and churches seeking to hold services during the pandemic; (3) individuals challenging restrictions on their rights to travel and to assemble peaceably; (4) small businesses and the self-employed challenging their designation as “non-essential”; (5) abortion clinics seeking to remain open during the pandemic; and (6) lawsuits related to election date and procedure changes.
What all six categories of plaintiffs raise in one fashion or another is the question that the late Supreme Court Justice Antonin Scalia essentially posed in his dissent in Obergefell v. Hodges and that arose again in the Court’s recent decision in Bostock v. Clayton County: Who rules?
Do our rulers remain, as enshrined in the Constitution, “We the People” acting through our elected representatives in state and federal legislatures, or are our rulers the “experts,” guided by data on which no one in this instance seems to have a firm handle?
Whatever one’s view of the outcomes, this remains the essential question of our time.