Constitutional Laboratories: Some Reflections on COVID-19 Litigation in Arizona
In federal court case after federal court case, plaintiffs challenging COVID-19 restrictions lost. The reason is obvious. Under modern equal protection and substantive due process doctrine, states receive enormous deference when restricting rights that federal courts do not consider to be fundamental. The “rational basis” test, or the “any conceivable basis test,” provides that so long as some rational legislator could have thought a particular restriction was reasonable, it will be upheld. More still, a substantive due process case from 1905 involving smallpox vaccination schemes has been erroneously taken for the proposition that even wider deference is necessary in a health emergency.
State cases that raised issues of state law fared, on the whole, better. This essay proposes a blueprint of available avenues under state law for future potential challenges to assertions of emergency authority. Of course, not all government measures will be unconstitutional under state law, and many will be necessary and desirable. But some assertions of authority might be unconstitutional under state law even if constitutional under modern federal doctrine. The overarching claim is that state courts and state constitutions are not merely “laboratories of democracy,” but also “laboratories of liberty” or, perhaps most fittingly, “laboratories of state constitutionalism.” Reflecting on my own litigation in Arizona, this essay makes the case that in several areas of law—nondelegation, judicial review of executive acts, state “equal privileges or immunities” clauses, and the obligations of contract—state constitutional law provides more fruitful grounds for future challenges for at least some kinds of assertions of emergency authority, and that the independent development of state constitutional law in these areas should be encouraged.
First, some background. Arizona, like other states, has a statute that delegates tremendous power to the Governor in the event of an emergency declaration. Arizona’s statute in fact delegates to the Governor “all police power” if the Governor declares an emergency resulting from “air pollution, fire, flood or floodwater, storm, epidemic, riot, earthquake or other causes.” Pursuant to this authority, Governor Doug Ducey, a Republican, issued a series of executive orders during the 2020 coronavirus pandemic, imposing novel requirements on health insurers and prohibiting price gouging; prohibiting “non-essential or elective” surgeries; suspending some of the legal requirements for obtaining unemployment insurance; prohibiting local governments from interfering with businesses he defined as “essential;” delaying enforcement of eviction actions; requiring individuals to stay home unless for essential activity; prohibiting the commercial eviction of small businesses; suspending regulatory requirements to allow restaurants to increase profits by selling grocery items; immunizing healthcare workers from civil liability contrary to existing statutes; delaying the start of the school year and waiving regulatory requirements related to education; and funding and extending programs, such as those administered by the Arizona Department of Environmental Quality, without legislative approval.
In particular, one of his executive orders shut down “bars” in the state while leaving “restaurant” and “hotel” bars open—including those that turned into nightclubs—so long as those establishments had the correct license. The only difference between the respective licenses was that a restaurant or hotel licensee’s food sales had to constitute at least forty percent of total annual sales. This disparate treatment was perhaps not surprising given that the Governor came from the restaurant industry. I was engaged by over one hundred bars to challenge these orders. The claims were deceptively simple: we argued first that the legislature should make the call if it wants to shut down certain businesses during an ongoing emergency in which the legislature is perfectly able to meet safely, and second that if it wanted to shut down businesses, it should distribute the economic costs equally and fairly. Shutting down “bars” who were able to meet the same health standards as other establishments, while allowing restaurant and hotel bars to stay open, was the Governor’s way to appear to be doing something about the pandemic while minimizing the economic harm to a politically powerful group and channeling the harm to a political minority. Although these claims were sure to fail in federal court, they had a decent shot under Arizona’s own constitution. This essay reflects on those state constitutional arguments.
Part I examines the nondelegation doctrine. There is much scholarly work examining and questioning the current federal doctrine, and nondelegation is ripe for evaluation and experimentation in the states. Elaborating on prior work, Part I proposes an administrable (or at least more administrable) theory of nondelegation that will allow states some power to delegate authority over private rights and conduct, but which would be significantly narrower than the modern federal doctrine. The idea is that legislatures must resolve the “important subjects,” leaving matters of mere detail to administrators. What qualifies as important will depend on the nature of the right or conduct being regulated, the scope of the conduct that is authorized to be regulated, and the breadth of administrative discretion. Under this approach, delegating power to local health officials to mandate vaccinations in particular circumstances would almost certainly be constitutional; delegating all regulatory power in an emergency, on the other hand, would likely not be.
Part II will propose that “rational basis review” should not apply when Governors exercise unilateral power pursuant to broad delegations of authority. The law of municipal corporations to this day maintains that judges are to evaluate the reasonableness of municipal policies enacted in pursuance of broad and general delegations of power, for example to regulate for the public health. The idea is that the legislature, when delegating in broad terms, surely does not intend for the municipal corporation to exercise its delegated power unreasonably. The same doctrine should apply to delegations of broad authority to the executive who, like municipal corporations, is not checked and balanced by any other governmental institution. Critically, such review would not be on the constitutional merits of a Governor’s actions; it would be on the statutory merits of those actions. Such review would ensure the executive is comporting with the delegation from the legislature.
Part III will argue that state courts should be encouraged to experiment with state analogs to two clauses of the federal Constitution—the Contracts Clause and the Privileges or Immunities Clause—that will likely be of no use in future federal challenges. Under the Contracts Clause, historically a state could affect contracts only incidentally through general regulation. An eviction moratorium, for example, would likely have been understood to target existing contracts directly, and would have been unconstitutional. Although the federal doctrine would preclude such a challenge today, some state courts may never have overturned their older doctrines under their own constitutions.
