The right to vote is one of the most essential tenets of our liberal democracy, but in the chaos of the COVID-19 pandemic, many United States citizens had to weigh the importance of their health against the importance of exercising their suffrage. Accordingly, several states considered and promulgated new voting rules allowing for far safer voting means such as early and mail-in voting. That is not to say that these procedures were not already widespread; before 2020, the majority of…

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COVID-19 exposes the necessity of accessible education for all students and begs us to reconsider education as a fundamental right under substantive due process. In light of this current health crisis, now is the time to consider the many inequities in access to education that have existed for centuries. As schools across the nation consider their modality of instruction for the school year, equitable education for students should be a primary concern for government, policy makers, and school systems. This…

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With COVID-19 cases surging across the country, many hospitals will soon face the unthinkable—having too few resources to treat all patients in need. Already overrun, some hospitals have had to make the choice to ration Intensive Care Unit (ICU) beds, ventilators, and other lifesaving care. Anticipating increased demand, many states have issued Crisis Standards of Care (CSC) that include guiding principles and criteria for allocating scarce resources. Patient advocates have challenged the triage protocols incorporated into some state CSC guidelines…

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In now-deleted tweets by President Trump, Trump claimed that Michigan sent “absentee ballots to 7.7 million people ahead of Primaries and the General Election.” He alleged that the move was done “illegally and without authorization by a rogue Secretary of State” and continued onward to say “I will ask to hold up funding to Michigan if they want to go down this Voter Fraud path!” Of course, the Secretary of State of Michigan had done nothing of the sort; instead,…

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The Supreme Court has two dockets. The first—and far more public—docket comprises the roughly eighty cases each Term that undergo extensive briefing and oral arguments before the Court. These cases can take months, or even more than a year, from the filing of a cert petition to issuance of an opinion by the Court. The second, often referred to as the “shadow docket,” includes a number of requests for emergency equitable relief. For cases on the shadow docket, the Court…

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In the ongoing litigation regarding prison conditions during the COVID-19 pandemic, one request of the litigants stands out: they want more soap. And sometimes—especially at the district court level—prisoners have been able to get that soap. In a Texas case, Valentine v. Collier, the district court ordered the prison to “[p]rovide [p]laintiffs and the class members with unrestricted access to hand soap and disposable hand towels to facilitate handwashing.” Similarly, in Swain v. Junior, a Florida district court required that…

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As a criminal defense attorney in the border city of El Paso, Texas, I meet with illegal immigrants weekly, if not daily. I witness their journey firsthand. I represented families when President Trump piloted his family separation policy in El Paso. Today, I am witnessing yet another Trump assault against brown immigrants. Trump is weaponizing COVID-19. President Trump’s anti-immigration resume is extensive. It boasts, among other things, his threat to shut down the government if it doesn’t fund his “big,…

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Back on January 1st we thought that 2020 would bring clarity of vision and foresight. Since then the world has turned upside down; however, long-standing legal precedent of what states can do in times of epidemics and pandemics has not. Many are claiming that it is unlawful for any governmental entity or official, in an effort to reduce COVID-19 infections and deaths, to impose restrictions upon travel, either across state borders or in large crowds within a state. I disagree….

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“Wrong the day it was decided” is a judgment that the Supreme Court reserves for overturning its most egregious prior decisions. One of the cases that most recently received that declaration is Korematsu v. United States, a decision that infamously sanctioned the World War II internment of individuals of Japanese ancestry. The Court’s repudiation of that decision, equal parts laudable and belated, offers hope that the logic of this decision is a relic of the past, but such hope may…

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As angry protesters, some clad in tactical gear and armed with semi-automatic rifles, storm state capitols to decry COVID-related orders, it’s worth asking why the Second Amendment resides in our Bill of Rights. In District of Columbia v. Heller, the Court held that it was there because the founding fathers wanted to protect the existence of citizen militias. But the reason for codifying the right, said the five-Justice majority, did not confine its substantive scope—of law-abiding citizens “to keep and…

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Parties have begun filing lawsuits seeking to “reopen” their states. These lawsuits challenge business closures and stay-at-home orders mandated by state and local governments. The Supreme Court has acknowledged, in the due process context, “the authority of a State to enact quarantine laws and ‘health laws of every description.’” Beyond due process, however, at least one of these lawsuits has raised dormant commerce clause issues, contending that, by ordering businesses to close, the state is unconstitutionally interfering with Congress’ Article…

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On March 27, the Hillsborough County Emergency Policy Group unanimously issued an order restricting the gatherings of non-essential businesses and services. The Rev. Rodney Howard-Browne responded that he would only cancel church services for the Rapture and that pastors who canceled services were “pansies.” After holding church services on March 29, county authorities arrested Howard-Browne for unlawful assembly and violating the public health emergency order. While the Religious Freedom Restoration Act (RFRA) of 1993 applies only to the federal government,…

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The case of Korematsu v. United States lives in constitutional infamy as the case which upheld the military policy of Japanese internment during WWII. In doing so, the Court—led by former KKK member Justice Black—did not deny that Japanese internment constituted a deprivation of constitutional rights. Instead, they found that the deprivation was justified due to the fact that the United States was at war. Because of this justification, Korematsu is one of several cases which stands for the proposition…

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In a May 5 post Assistant Attorney General for the Navajo Nation Department of Justice Paul Spruhan argued that Indian tribes should have authority to restrict movement through their territories in order to stem the tide of the COVID-19 epidemic. Those very principles are now being put to the test in South Dakota, where Gov. Kristi Noem has demanded that Oglala Sioux tribal leaders remove the checkpoints set up to regulate traffic through the reservation. Gov. Noem has previously come…

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Can a business-closure regulation of commercial property in a pandemic be a taking?  In the midst of a pandemic, it generally falls to government to enact laws and regulations in an effort to curtail the spread of disease. For example, the Supreme Court discusses compulsory vaccination in Jacobson v. Massachusetts and quarantines in Smith v. Turner.  In a liberty-oriented constitutional federalist democratic republic like America, this can be challenging–indeed, the volume of published opinions in this area of law show…

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Government surveillance capabilities have always been a matter of public concern, but the current pandemic makes the issue especially salient. We set out to discover what Americans think of government surveillance during this crisis. Americans have been inundated with media reports of novel forms of public health surveillance since the crisis began. Apple and Google just announced a partnership to create a smartphone contact-tracing application, which would use Bluetooth to trace a person’s movement and contacts. Apple is also using…

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As a general rule, the government is permitted to restrict activities, including protesting, during the COVID-19 pandemic. The government can regulate the time, place, and manner of speech in public forums with a content neutral restriction so long as the restriction is narrowly tailored to “serve a significant government interest” and “leave[s] open ample alternative channels for communication of the information.” A shelter-in-place order can constitutionally prevent public gatherings for a period of time (many of these orders are in…

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Gun owners and would-be gun purchasers are arguing that state measures to prevent the spread of the novel coronavirus infringe on their Second Amendment rights. To the extent the premise is correct—the Second Amendment guarantees access to a firearm store—it’s not clear that their conclusion follows. In response to the COVID-19 pandemic, forty-five states have issued statewide stay at home orders. These orders are based upon guidance from the Center for Disease Control and other public health agencies that have…

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