United States: COVID-19-Related Restrictions Continue To Receive Scrutiny From The Courts

As discussed in our prior updates, courts continue to hear challenges to the constitutionality and statutory validity of COVID-19-related restrictions and programs. PPP loans, restrictions on debt collection efforts, "stay at home" orders, the applicability of gathering restrictions to religious services, and "travel ban" restrictions on interstate travel have all been challenged. Various courts have reviewed these orders and restrictions, and although many have been upheld, in some instances the courts have blocked enforcement.

PPP Loans

A Michigan federal court followed the lead of a Wisconsin federal court (which we wrote about here) and held that restrictions on PPP loans under the recent CARES Act to strip clubs are improper.¹ But unlike the Wisconsin court, the Michigan court avoided the First Amendment question and instead found that the PPP loan restrictions violates the CARES Act itself. The court held that "Congress did not pick winners and losers in the PPP. Instead, through the PPP, Congress provided temporary paycheck support to all Americans employed by all small businesses . . . even businesses that may have been disfavored during normal times."²

Debt Collection Efforts

A Massachusetts federal court enjoined enforcement of a Massachusetts order that restricted debt collection businesses from, among other things, "initiat[ing], fil[ing], or threaten[ing] to file any new collection lawsuit," and from "initiat[ing] a communication with any debtor via telephone."³ A trade group for creditors, debt buyers, and collection agencies, represented by Seyfarth Shaw attorneys David Bizar and Robert Carty, argued that the restrictions violated the First Amendment. The court agreed, finding that creditors communicating with debtors are already subject to a variety of federal and state laws, such that the Massachusetts restrictions do not "add[] anything to [debtors'] protections . . . other than an unconstitutional ban on one form of communication."⁴ The court further held that the right of access to courts is "among the most precious of the liberties safeguarded by the Bill of Rights," and that Massachusetts' restriction of access, even though temporary, was unconstitutional.⁵ As the court put it, "the mere fact of an emergency does not increase constitutional power, nor diminish constitutional restrictions."⁶

"Stay at Home" Orders

Pennsylvania's "stay at home" orders (which you can read more about here, here, and here) have generated a significant amount of litigation. As we previously discussed, the Pennsylvania Supreme Court found that the "stay at home" orders are constitutional. The group challenging those orders appealed the decision to the US Supreme Court. But on May 6, 2020, the Court denied the challengers' motion for a stay pending appeal in an unsigned, one-sentence order.⁷ Undeterred, on May 7, several Pennsylvania counties and legislators filed a new challenge to the "stay at home" orders in federal district court.⁸

A Missouri federal court upheld local "stay at home" orders imposed by St. Louis.⁹ The court held that the orders were constitutional because "they have a real and substantial relation to the goal of stemming the tide of the public-health pandemic, and they are not beyond all question, a plain, palpable invasion of rights secured by the fundamental law."¹⁰ Similarly, a federal court in Arizona rejected a challenge to state and local "stay at home" orders, holding that "[i]n light of the circumstances presented by COVID-19 and the fundamental principle that our individual rights must at times yield to the needs of society," the orders were constitutional.¹¹

The Wisconsin Supreme Court reached the opposite conclusion, however, and struck down that state's "stay at home orders."¹² The court found that the "stay at home" orders in Wisconsin were set by "one unelected official," the head of the Wisconsin Department of Health Services, who exceeded her statutory authority.¹³ The court held that the official's assertion that the legislature delegated to her the power to "implement all emergency measures necessary to control communicable diseases, even at the expense of fundamental liberties, without rulemaking . . . is constitutionally suspect."¹⁴ The court further held that the legislature can delegate power to unelected officials, but only with "procedural safeguards to prevent the arbitrary, unreasonable or oppressive conduct of the agency," safeguards that, according to the court, were not followed in this instance.¹⁵

Gathering Restrictions

Restrictions on religious and other gatherings also have led to lawsuits. Federal courts in Illinois,¹⁶ Virginia,¹⁷ California,¹⁸ Maine,¹⁹ and Kentucky²⁰ have upheld these restrictions, with the present danger of the pandemic figuring largely in some of these decisions. For example, the Illinois court opened its decision by noting that COVID-19 deaths exceed "the number of people who perished during the 9/11 terrorist attacks, Pearl Harbor, and the Battle of Gettysburg combined."²¹ The court held that "even the foundational rights secured by the First Amendment are not without limits; they are subject to restriction if necessary to further compelling government interests and, certainly, the prevention of infections and deaths qualifies. After all, without life, there can be no liberty or pursuit of happiness."²²

The US Court of Appeals for the Sixth Circuit and at least one other Kentucky federal court have disagreed, however, and have enjoined enforcement of restrictions on religious gatherings. Initially, the Sixth Circuit stayed pending appeal a restriction on "drive-in" religious services—i.e., services where congregants listen to the service from their cars.²³ The court found that "[o]n the same Easter Sunday that police officers informed congregants they were violating criminal laws by sitting in their cars in a parking lot, hundreds of cars were parked in grocery store parking lots less than a mile from the church. The orders permit big-lot parking for secular purposes, just not for religious purposes. All in all, the Governor did not narrowly tailor the order's impact on religious exercise."²⁴ In a subsequent decision in a different appeal, however, the Sixth Circuit extended this reasoning to in-person services, holding that "[t]he Governor has offered no good reason for refusing to trust the congregants who promise to" practice social distancing during "worship in just the same way it trusts accountants, lawyers, and laundromat workers to do the same."²⁵ The court concluded that "[w]hile the law may take naps during a pandemic, we will not let it sleep through one."²⁶

Another Kentucky federal court agreed.²⁷ It stated that "[w]e are a relatively young nation. But our Constitution is the oldest in the world. We describe it as enduring—a value that must be protected not only when it is easy but when it is hard."²⁸ The court held that the restrictions were overbroad because they allowed secular activities to be carried out if social distancing is observed, but not in-person religious services. As the court put it, "[i]f social distancing is good enough for [hardware and grocery stores], it is good enough for in-person religious services which, unlike the foregoing, benefit from constitutional protection."²⁹

"Travel Bans"

The same Kentucky federal court that upheld restrictions on gatherings enjoined enforcement of a "travel ban" that required both Kentuckians and non-Kentuckians who were outside the state and then traveled into Kentucky to self-quarantine for 14 days.³⁰ The court was troubled by the fact that "[t]he I-75 bridge connecting Kentucky to Ohio is one of the busiest bridges in the nation. Massive traffic jams would result. Quarantine facilities would have to be set up by the State to accommodate the hundreds, if not thousands, of people who would have to be quarantined." Moreover, "[p]eople from states north of Kentucky would have to be quarantined if they stopped when passing through Kentucky on the way to Florida or other southern destinations."³¹ The court held that these "examples show that these travel regulations are not narrowly tailored to achieve the government's purpose."³²

Conclusion

Although many courts have held that COVID-19-related government restrictions are constitutional or otherwise valid, all of the courts examining these issues have scrutinized the restrictions closely. Courts have also been quick to block the enforcement of restrictions that they believe have gone too far, even in these unprecedented times. Challenges to pandemic-related orders will undoubtedly continue, with courts focusing on the scope, duration, and impact of the orders in assessing their validity.

Footnotes

1. 2020 US Dist. LEXIS 82213 (E.D. Mich. May 11, 2020).
2. Id. at *4-5.
3. 2020 US Dist. LEXIS 79716, at *3-4 (D. Mass. May 6, 2020).
4. Id. at *21.
5. Id. at *23 (internal quotation marks omitted).
6. Id. at *24.
7. https://www.supremecourt.gov/orders/courtorders/050620zr_o75p.pdf.
8. Case No. 20-cv-00677-WSS (W.D. Pa.).
9. 2020 US Dist. LEXIS 81433 (E.D. Mo. May 8, 2020).
10. Id. (internal quotation marks omitted).
11. 2020 US Dist. LEXIS 81369, at *17 (D. Az. May 8, 2020).
12. 2020 WL 2465677 (Wisc. May 13, 2020).
13. Id. at *1.
14. Id. at *7 (internal citation and quotation marks omitted).
15. Id. at *8 (internal quotation marks omitted).
16. 2020 US Dist. LEXIS 77512 (N.D. Ill. May 3, 2020); 2020 WL 24689194 (N.D. Ill. May 13, 2020).
17. 2020 WL 2110416 (E.D. Va. May 1, 2020).
18. 2020 US Dist. LEXIS 81760 (E.D. Cal. May 8, 2020); 2020 WL 2121111 (E.D. Cal. May 5, 2020).
19. 2020 US Dist. LEXIS 81962 (D. Me. May 9, 2020).
20. 2020 US Dist. LEXIS 77987 (E.D. Ky. May 4, 2020).
21. 2020 US Dist. LEXIS 77512 at *1.
22. Id. at *3.
23. 2020 US App. LEXIS 14213 (6th Cir. May 2, 2020).
24. Id. at *7.
25. 2020 US App. LEXIS 14933, at *9 (6th Cir. May 9, 2020).
26. Id. at *10.
27. 2020 US Dist. LEXIS 81534 (E.D. Ky. May 8, 2020).
28. Id. at *1 (internal footnote omitted).
29. Id. at *15.
30. 2020 U.S. Dist. LEXIS 77987, at *11-16.
31. Id. at *14.
32. Id.