The Long Shadow of Jacobson v. Massachusetts: Public Health, Fundamental Rights, and the Courts

The COVID-19 pandemic struck the United States in early 2020. The coronavirus prompted public health mandates without precedent for at least a century. Some states almost entirely locked down. These measures inevitably impinged on activities that the Constitution would normally protect. In confronting these cases, many courts have turned to a 1905 Supreme Court case decision, Jacobson v. Massachusetts, often considered the leading case in public health law. There is little agreement, however, about how that decision fits into the current framework of constitutional law. As a result, courts have differed widely in the degree of deference they give public health authorities. This Article attempts to bring light to bear on this dispute. It begins by placing Jacobson in historical context and exploring how later Supreme Court cases make use of it. History undermines the argument for giving Jacobson talismanic significance in public health emergencies. The Article then examines how courts have applied Jacobson in abortion and religious freedom cases during the current pandemic. Some courts view Jacobson as virtually a blank check for government actions; others apply standard constitutional doctrines with little heed of the emergency. Finally, the Article attempts to provide some guidance about how courts should approach judicial review during the emergency. The best analogy seems to be found in national security cases dealing with free speech. Like outbreaks of dangerous diseases, national security threats pose the need for decisive government precautions, often in the face of great uncertainty. The courts do not abandon normal constitutional tests in national security cases. In applying those tests, however, they give substantial deference to the judgment of the responsible government officials. A similar approach should govern in public health emergencies

California Climate Law---Model or Object Lesson?

In the invitation to this Symposium on Reconceptualizing the Future of Environmental Law, the organizers explained that the Symposium “focuses on the continued expansion of environmental law into distinct areas of the law, requiring an increasingly multidisciplinary approach beyond that of traditional federal regulation.” In short, the question posed is about the future proliferation of environmental measures outside the previous domains of federal environmental statutes. At the risk of being guilty of local parochialism, I would like to discuss how the future described by the organizers has already arrived in California--both in the sense that a great deal is happening outside the purview of “federal statutes,” and that much of it involves “distinct areas of law” other than traditional environmental regulation. My focus will be on the issue of climate change, where California has been particularly active. Not all of California\u27s efforts have been met with approval, even from observers who are highly sympathetic to the goals. Some influential environmental scholars have debated whether California might have done better to simply set a price on carbon and avoid further regulatory apparatus, either by traditional regulators or elsewhere. I will use this debate to discuss some of the costs and benefits of mainstreaming environmental law into areas outside of the traditional environmental statutes. Part I will address California\u27s broad portfolio of climate measures. These measures certainly fit the organizer\u27s description: none of them are federal, but many are implemented by parts of the state government other than environmental agencies, and some reach forms of conduct well outside traditional environmental regulation. Part II will ask whether the breadth of this regulatory portfolio is really desirable: would we be better off to stick to a simple direct attack on carbon emissions? Using so many different tools may simply be an unnecessary complication, if not counterproductive. But a broad portfolio might also be more effective in some ways