Discover and read the best of Twitter Threads about #JacobsonWatch
Most recents (4)
đ„đ„đ„#JacobsonWatchđ„đ„đ„ @weparmet is *the* authority. As COVOD court challenges continue, âcitations to Jacobson are bound to proliferate.â Parmet âsituates Harlanâs nuanced & Delphic opinion in its jurisprudential & public health context.â
"Of all the possible interpretations of Jacobson, [the 5th Circuit's influential holding that it means traditional tiers of scrutiny don't apply during an epidemic] is especially
unconvincing...."
unconvincing...."
"First, Jacobson rested on a police power jurisprudence that
applied to all public health laws, not simply those issued during an emergency.... Justice Harlanâs opinion *did not* call for a different approach to constitutional review during an emergency."
applied to all public health laws, not simply those issued during an emergency.... Justice Harlanâs opinion *did not* call for a different approach to constitutional review during an emergency."
#JacobsonWatch: CT Citizens Def. League opinion discusses Jacobson at length & quotes its standard, but argues courts have a role in crisis. Cites CJ Roberts's concurrence in South Bay for the principle that covid orders merit deferential review.
ctnewsjunkie.com/upload/2020/06âŠ
ctnewsjunkie.com/upload/2020/06âŠ
Court also cites my @HarvLRev Forum essay w/ @steve_vladeck, Coronavirus, Civil
Liberties, and the Courts: The Case Against âSuspendingâ Judicial Review, (which is obviously the real reason I keep up the #JacobsonWatch thing, right?) papers.ssrn.com/sol3/papers.cfâŠ
Liberties, and the Courts: The Case Against âSuspendingâ Judicial Review, (which is obviously the real reason I keep up the #JacobsonWatch thing, right?) papers.ssrn.com/sol3/papers.cfâŠ
"Even granting deference & the wisdom of the decision to initially suspend all fingerprinting [for firearm sales] at the outset of the pandemic," the state hasn't shown "there continues to be a *substantial* fit b/w protecting people from COVID-19 & suspension of fingerprinting."
I feel like I must be missing something. Roberts emphasizes that the order is not discriminatory (and gets the definition of âgatheringâ right, which is great!) - meaning rational basis review would apply under Smith, right? Regardless of any Jacobson standard switcheroo, right?
2/ Roberts seems to be citing #JacobsonWatch for its more anodyne propositions re: state police power & deference to elected branches on policy choices made under scientific uncertainty. Avoids describing it as an emergency powers case & doesnât reference its standard of review.
3/ The last line (re: âclearly unconstitutionalâ) seems to reference the standard for SCOTUS to grant an injunction the lower court refused (which the first para distinguishes as a higher bar than for a stay of lower court intervention), quoting Shapiro treatise, not Jacobson
Todayâs federal district court decision denying a preliminary injunction of Maineâs 14-day travelersâ quarantine + limits on hotels, inns & campgrounds is full of interesting analysis. Opinion here: courtlistener.com/recap/gov.uscoâŠ
2/ The court rejects the application of Jacobson as a superseding standard of review for public health emergency orders, citing my forthcoming article w/ @steve_vladeck as well as @IlyaSominâs @volokhC post. #JacobsonWatch
papers.ssrn.com/sol3/papers.cfâŠ
papers.ssrn.com/sol3/papers.cfâŠ
3/ Like the courts relying on Jacobson to uphold coronavirus abortion bans & other restrictions, the Maine district court misrepresents Jacobson as applying mere rationality review and nothing more (maybe less?), saying Jacobson âbarely authorizes judicial review at all.â
