Posted by Elizabeth Wolstein, Partner
On October 6, 2020, Governor Cuomo issued a new executive order closing “non-essential” businesses in certain zip codes based on increased COVID positivity rates in those zones. Seven months into the pandemic, it is time to reevaluate the constitutionality of this approach that has so devastated small businesses.
At the start of the pandemic New York and other states took drastic executive action to try to slow the spread of COVID-19. One approach was to distinguish between “essential” and “non-essential” businesses. Businesses governors considered “essential” were allowed to stay open, while businesses deemed non-essential were required to close. Among the states that drew this distinction, closing or dramatically limiting the operations of “non-essential” businesses, were New York, New Jersey, Connecticut, Pennsylvania, Massachusetts, Virginia, North Carolina, and Florida.
Although the states’ executive orders typically failed to articulate any public health justification for closing some businesses while allowing others to operate—e.g., why would a big box store pose less of a risk of transmission than a neighborhood shoe repair shop—the courts gave states wide latitude to implement sweeping restrictions on the most basic liberties, including going outside, working at your job, and operating your business. For example, in mid-April, the Pennsylvania Supreme Court rejected statutory and constitutional claims brought by businesses deemed “non-life-sustaining” under Governor Wolf’s executive order. See Friends of Danny DeVito v. Wolf, 227 A.3d 872 (Pa. Apr. 13, 2020). One of the plaintiffs was a real estate broker who was banned from conducting business either from her office or from her home, even though insurance brokers and other professional were allowed to work out of their offices. Another plaintiff was a golf course. All the plaintiffs said they could operate their businesses using COVID prevention and mitigation measures. The court rebuffed their equal protection, due process, separation of powers, takings, and First Amendment challenges. See id. at 881-82, 892-903.
Other cases from the early period of the pandemic were equally dismissive of legal challenges by businesses deemed non-essential by a wave of the governor’s hand. See Prof’l Beauty Fed’n. of Cal. v. Newsom, 2020 U.S. Dist. LEXIS 102019, at *5-6 (C.D. Cal. June 8, 2020) (denying TRO brought by cosmetology businesses contending that differential treatment of, on the one hand, “espresso bars, recreational cannabis dispensaries, pet grooming, [and] chiropractors,” which were permitted to operate, and, on the other hand, “the hair, skin, nail care, and electrolysis industries,” which were required to close “regardless of the measures taken by these professionals to reduce or eliminate the risk of the virus spreading”); Hartman v. Acton, 2020 U.S. Dist. LEXIS 72068, at *7 (S.D. Ohio Apr. 21, 2020) (denying TRO to bridal shop deemed non-essential; plaintiffs “have failed even to demonstrate a cognizable [constitutional] injury”); CommCan, Inc. v. Baker, 2020 Mass. Super. LEXIS 70, at *3 (Suffolk Co. Super. Ct. Apr. 16, 2020) (denying preliminary injunction sought by adult-use marijuana establishments deemed non-essential, where liquor stores and medical marijuana facilities were deemed essential and could remain open; while plaintiffs made “a convincing showing that there may be other ways to address these concerns that would allow adult-use marijuana establishments to restart their businesses without harming public health or safety,” “the Governor was not legally required to implement a different alternative or ensure that his emergency closure orders impose the smallest possible economic burden on adult-use marijuana establishments”).
Seven months into the states’ experiments with executive order shut downs, the constitutional landscape has changed. Whatever latitude for constitutionally questionable orders may have existed when the pandemic was new, there is no longer a legal justification for prohibiting people from earning a living if they work in or own what a governor deems a “non-essential” business.
For one thing, the underlying facts have changed markedly. New York reopened “non-essential” businesses over the summer while keeping the virus at bay. Use of masks and social distancing is universal, supplemented by temperature checks and plexiglass barriers on the part of some businesses. In addition, medical understanding and therefore treatment options have improved since the early days. Multiple studies now suggest the lockdowns were not effective, and medical and public health professionals have raised concerns about their “devastating effects on short and long-term public health.” Finally, some states’ (including New York’s) selective enforcement of social distancing requirements has undermined the rationale for business closures. Over the summer protestors were allowed to march shoulder to shoulder, unmasked and emitting droplets with their chants, with no finger wagging or enforcement by governors and mayors. If such gatherings were not a risk to public health, why should a nail salon with a mask and cleaning protocol not be allowed to operate? Closing businesses that can mitigate risk looks more arbitrary than ever.
Equally significant, we now have the district court’s decision in County of Butler v. Wolf, 2020 U.S. Dis. LEXIS 167544 (W.D. Pa. Sept. 14, 2020), which undertook a searching analysis of the constitutional questions raised by Pennsylvania’s COVID-19 executive orders, including their limits on gatherings, stay-at-home mandates, and shuttering of “non-life-sustaining” businesses. The court issued a declaratory judgment declaring each aspect of the executive orders unconstitutional. See id. at 100-101. As to the business closures, the court held that the shut down of “non-life-sustaining businesses” “was so arbitrary in its creation, scope, and administration as to fail constitutional scrutiny.” Id. at *83.
Unlike the earlier cases, the court did not believe it constitutionally sound to give unlimited deference to the governor’s efforts to control the pandemic. Normal constitutional scrutiny, even in an emergency, the court reasoned, was especially important “where, as here, measures directly impacting citizens are taken outside the normal legislative or administrative process” by the governor and his health department. Id. at *30. The Founders “abhorred the concept of one-person rule” and “decried government by fiat.” Id. The question of what constitutional framework to apply was not self-evident, however, because the shutdown of all “non-life sustaining” businesses is unprecedented in the history of the Commonwealth and, indeed, the nation. While historical records show that certain economic activities were curtailed in response to the Spanish Flu pandemic, there has never been an instance where a government or agent thereof has sua sponte divided every business in the Commonwealth into two camps—”life-sustaining” and “non-life sustaining”—and closed all of the businesses deemed “non-life-sustaining” (unless that business obtained a discretionary waiver). The unprecedented nature of the business closure—even in light of historic emergency situations—makes its examination difficult from a constitutional perspective. It simply does not neatly fit with any precedent ever addressed by our courts. Never before has the government exercised such vast and immediate power over every business, business owner, and employee in the Commonwealth. Never before has the government taken a direct action which shuttered so many businesses and sidelined so many employees and rendered their ability to operate, and to work, solely dependent on government discretion. Id. at *74-*75.
The government’s actions implicated “the right of citizens to support themselves by engaging in a chosen occupation,” a right “long [ ] recognized as a component of the liberties protected by the Fourteenth Amendment.” Id. at *77. In deciding which businesses were or were not “life-sustaining,” the governor was not “merely coming up with a draft of some theoretical white paper, but rather, determining who could work and who could not, who would earn a paycheck and who would be unemployed—and for some—which businesses would live, and which would die.” Id. at 91-92. The governor’s creation and implementation of such a regime was “so arbitrary as to violation the Business Plaintiffs’ substantive due process rights guaranteed by the Fourteenth Amendment.” Id. at 93.
The court also held that distinguishing between “life-sustaining” and “non-life-sustaining” failed rational basis scrutiny and therefore violated the business plaintiffs’ equal protection rights. See id. at *97. While “the rational basis test is forgiving,” “distinctions cannot be arbitrary or irrational and pass scrutiny.” Id. at *95. The court wondered why the plaintiff furniture retailer was forced to close when Walmart, Lowes, and The Home Depot could stay open. See id. Nor did the distinction rationally relate to limiting personal interactions, the state’s stated purpose in shuttering “non-life-sustaining” businesses, since “closing the furniture retailer did not keep at home a consumer looking to buy a new chair or lamp, it just sent him to Walmart.” Id. at *98.
Governor Cuomo’s October 6 order is no less arbitrary. The Governor has not suggested that the operation of “non-essential” businesses in the designated zones is causing a spike in cases; or that patronizing or working at a non-essential business is any more risky than doing so for an “essential” business; or that non-essential businesses are unable to mitigate risk through masks and social distancing. The order calls out certain categories of business, including gyms, barber shops, nail salons, and all other “personal care services” as associated with a greater risk of transmission based on no evidence whatsoever. What facts and constitutional principles justify the Governor declaring that a dentist is allowed to work but a barber is not?
Whether a court acquiesces in arbitrary executive action depends on who the court thinks gets to decide the significance of the facts on the ground. Compare S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613-14 (May 29, 2020) (“politically accountable officials of the States” “should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people”) (opinion of Roberts, C.J. concurring in denial of application for injunctive relief), with id. at 1615 (California has not shown “compelling justification for distinguishing between (i) religious worship services and (ii) the litany of other secular businesses that are not subject to an occupancy cap”) (Kavanaugh, J., dissenting from denial of application for injunctive relief). The power of the ballot box is likely cold comfort for the barbers, cosmetologists, gym workers, and others in the hot spots prevented from earning a living or going to church. A regime of maximum deference without regard to the facts forces a small minority of citizens to bear the brunt of arbitrary executive actions that can no longer be chalked up to an “emergency.” We should hope that courts considering one-person shut downs of “non-essential” businesses and other basic liberties do not shrink from the usual constitutional analysis.
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 See, e.g., https://www.medrxiv.org/content/10.1101/2020.04.24.20078717v1.full.pdf https://www.wsj.com/articles/the-failed-experiment-of-covid-lockdowns-11599000890 (paywall); https://mises.org/wire/evidence-keeps-piling-lockdowns-dont-work ; https://www.aier.org/article/experience-from-other-countries-show-lockdowns-dont-work/.
 The court held that the gathering limits violated the First Amendment; the stay-at-home orders violated the Due Process Clause; and the business closures violated the Due Process and Equal Protection clauses. See id. at 100-101.