Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 5 of the Land Use, Human Health, and Equity Project
Editors: Jessica Roberts, Jillian Aicher, Colt Watkiss
Contributing Researcher: Jillian Aicher[*]

The pandemic has fostered many cases challenging emergency powers of government to limit or control personal behavior. The judicial standards used and the outcomes have not been uniform, but they inform future public health and climate change land use planning. The individual rights claims vary, covering freedom of religion, free speech and assembly, takings, right to travel, right to abortion, and the right to work, among others. An important threshold issue in these cases is whether the deferential Jacobson v. Massachusetts standard will apply or whether traditional constitutional principles will govern.

In the 1905 case Jacobson v. Massachusetts, the Supreme Court upheld Massachusetts’ vaccination law during a smallpox outbreak and affirmed the defendant’s guilty verdict for failing to comply. The court stated, “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” It then exhibited significant deference to the public health statute due to the smallpox emergency. District courts, Circuit Courts, and even the Supreme Court (Chief Justice Roberts, concurring in South Bay United Pentecostal Church v. Newsom) have cited Jacobson’s deferential standard when considering COVID-related orders’ restrictions on individual rights. Others, however, reject that Jacobson deference should apply and instead employ more recent constitutional principles and standards of scrutiny.

  • Illinois Republican Party v. Pritzker: The Seventh Circuit declined to issue a preliminary injunction for a COVID-related executive order, which Plaintiffs argued violated free speech. When considering the order’s “overall validity,” the court found Jacobson applicable, stating, “[a]t least at this stage of the pandemic, Jacobson takes off the table any general challenge to EO43 based on the Fourteenth Amendment’s protection of liberty. Like the order designed to combat the smallpox epidemic, EO43 is an order designed to address a serious public-health crisis.”
  • County of Butler v. Wolf: A Pennsylvania district court declined to apply Jacobson to analyze the constitutionality of several executive orders and instead used ordinary scrutiny standards. The court found the governor’s and health commissioner’s orders – imposing gathering limits, stay at home requirements, and business closures –unconstitutional.

While precise litigation risks surrounding emergency laws (regarding separation of powers, scope of authority, and individual rights claims) remain unclear, some general takeaways can be discerned. First, many courts apply Jacobson deference when analyzing whether COVID-related executive orders violate constitutional rights. When Jacobson is not applied, many courts uphold orders as furthering a compelling government interest, but some strike down the orders as not narrowly tailored or arbitrary (depending on the order itself and the constitutional standard used). Second, state actors must pay close attention to procedural requirements set out in emergency laws (such as rulemaking procedures and declaration timelines). Third, local public health actions (grounded in public health, not emergency, legislation) will play an important role when planning for local land use measures.

[*] Jessica Roberts is a second year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.
Jillian Aicher is a second year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.
Colt Watkiss is a first year student at the Elisabeth Haub School of Law and Land Use Law Center Volunteer.