September 15, 2020
By Timothy Sandefur

A federal judge in Pittsburgh ruled yesterday that Pennsylvania’s series of COVID-19 “lockdown” orders violate the federal Constitution in a variety of different ways. The case is separate from the lawsuit brought in Philadelphia by American Freedom Network member Wally Zimolong (AFN is the Goldwater Institute’s national network of pro bono attorneys litigating for liberty), but it involves many of the same issues. Both cases, as well as another case ongoing in Harrisburg, are likely to reach the Third Circuit Court of Appeals soon.

The Pittsburgh decision acknowledged that the government has a legitimate role to play in protecting the public against the spread of diseases, but observed that Governor Tom Wolf’s actions were unprecedented: “The lockdowns imposed across the United States,” wrote judge William Stickman, “have never been used in response to any other disease in our history. They were not recommendations made by the CDC. They were unheard of by the people this nation until just this year.” Citing a 1990 case in which the Third Circuit ruled that a city ordinance banning “car cruising” was unconstitutional because it intruded on “the right to move freely about one’s neighborhood,” Judge Stickman concluded that the state’s lockdown orders “impacted liberties not merely limited to the act of traveling, but the very liberty interests arising from the fruits of travel, such as the right of association and even the right to privacy.”

The orders also violated the individual’s right to earn a living. Citing scholarship by Goldwater Institute attorneys, the court found that “the right of citizens to support themselves by engaging in a chosen occupation is deeply rooted in our nation’s legal and cultural history and has long been recognized as a component of the liberties protected by the Fourteenth Amendment,” and while states can regulate economic activity to protect consumers, they may not arbitrarily and irrationally decide who can and cannot do business. Yet the Pennsylvania orders arbitrarily drew lines between “life-sustaining” and “non-life-sustaining” businesses—terms that have never been defined, and which the governor’s office arbitrarily changed at least ten times since the lockdowns began. Characterizing the state’s actions as “shockingly arbitrary,” the court observed that state officials “never formulated a set, objective definition in writing of what constitutes ‘life-sustaining,’” with the consequence that “businesses [that] sell the same products or perform the same services” were classified as non-life-sustaining or as life-sustaining without any apparent rationale:

For example, Plaintiff R.W. McDonald & Sons is a small appliance and furniture store that was deemed a “non-life-sustaining” business and required to close. But larger retailers selling the same products, such as Lowes, The Home Depot, Walmart and others remained opened. Mr. McDonald stated that his business “lost approximately $300,000 in revenue” and that his business has been “financially devastated.” He also averred that he lost business to the big-box retailers that were permitted to remain in operation. Plaintiffs Mike and Nancy Gifford and Chris and Jody Bertoncello-Young, each in the salon business, attempted to remain open to sell hair and other styling products, but were advised that as “non-life-sustaining” businesses they had to close. But those products could be purchased at “life-sustaining” big box retailers and drug stores. It is paradoxical that in an effort to keep people apart, Defendants’ business closure orders permitted to remain in business the largest retailers with the highest occupancy limits.

The court concluded that this arbitrary line-drawing violates both the equal protection and due process clauses of the federal Constitution.

The same questions are presented in the Philadelphia lawsuit, as well. Two weeks ago, a federal judge refused to dismiss that case, noting that the state’s arbitrary decision to grant or deny “waivers” to businesses resulted in “nearly identical businesses” being “treated differently under the waiver program.”

States certainly have power to implement health regulations designed to protect people against the spread of infection. But those regulations have to be general, impartial, transparent, and fair. In too many places, state officials have disregarded those requirements and have adopted arbitrary and senseless rules behind closed doors, resulting in unjust treatment that is wreaking havoc on the nation’s economy.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.

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