The Public’s waning tolerance for local and state measures to address COVID-19 lead to nearly three-quarters of the U.S facing some form of COVID-19 related lawsuit. These legal challenges range in alleging violation of First, Second, Fourth, and Fourteenth Amendments of the U.S. Constitution, specifically concerning non-delegation doctrine, certain executive orders not often narrowly tailored, abuse of gubernatorial emergency powers, and alleged Religious Freedom Rights Act violations.
Concerns regarding the expansion of government authority in the times of COVID-19 would even lead SCOTUS Justice Alito to say “The pandemic has resulted in previously unimaginable restrictions on individual liberty [we have] never before seen restrictions as severe, extensive, and prolonged as those experienced in this nation now.”Serious examples of specific restrictive measures have been witnessed in the gerrymandering of micro-cluster zones to include places of worship or often arbitrary capacity limits, a broad extension of SCOTUS case Jacobson v. Massachusetts, which found that states had the authority to enforce laws that may violate one’s personal liberties, and inconsistent permittance of various protest groups. Most disconcerting of all is President Biden’s recent comments on a nation-wide mask mandate, which would disregard state and local authority, because “it is not about your rights, it’s about your responsibilities as an American…people have to wear masks in public.”
This position by President Biden is likely to be challenged on Constitutional grounds, as well as on a question of determining what may be the appropriate justification for the government to dispense of American civil liberties in the name of public safety when predicting an emergency, an undesirable precedent if we are to preserve our Constitutional republic and prevent the exploitation of emergency powers in the future. The Supreme Court said, “Emergency does not create power… the Federal Government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency.”
Challenges to the government such as those presented above and numerous others will remain an issue in the foreseeable future, especially for states without sunset provisions, provisions meant to determine the expiration of emergency declarations or some legislation. For the other 37 states lacking such provisions, emergency declarations executed under COVID-19 likely will remain beyond COVID-19, such as surveillance and contact-tracing software, which may have originally benefitted the public, may later be expansively misapplied during a future state of emergencies with greater usage.