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Today’s federal district court decision denying a preliminary injunction of Maine’s 14-day travelers’ quarantine + limits on hotels, inns & campgrounds is full of interesting analysis. Opinion here: courtlistener.com/recap/gov.usco…
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 @IlyaSomin’s @volokhC post. #JacobsonWatch

papers.ssrn.com/sol3/papers.cf…
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 “barely authorizes judicial review at all.”
4/ Ultimately, the court agrees w/ the plaintiffs that strict scrutiny applies to restrictions on interstate travel, finds the 14-day quarantine + hotel/campground restrictions are effectively a bar on anyone who doesn’t have access to non-rental lodging in which to quarantine.
5/ BUT the court finds based on the current factual situation (emphasizes lack of testing capacity) & best available scientific evidence re: risk, the travelers’ quarantine probably survives strict scrutiny b/c “it is not at all clear that there are any less restrictive means”
6/ Of note re: #immunitypassports, the court strongly implies history of infection/antibodies may eventually need to be assessed as part of an individualized risk assessment of travelers, but for now, scientific uncertainty re: immunity justifies blanket restrictions on travel
7/ court also finds the plaintiffs’ procedural due process claim (I always feel the need to apologize to nonlawyers about how ridiculous that term sounds) that individual quarantine orders require a hearing is unlikely to be successful.
8/ Court finds (due to emergency circumstances) plaintiffs are not entitled to a hearing prior to imposition of travelers quarantine. Also finds they haven’t shown that they’ve been denied an opportunity to seek review after the quarantine is imposed (via federal or state court)
9/ In conclusion court reiterates travelers’ quarantine + hotel limits are likely to be upheld based on current facts, but as the situation evolves, that could change. If so, easy fix for state would be to keep quarantine, but permit out-of-staters to quarantine in temp lodgings
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Lindsay Wiley
@ProfLWiley
The claims before the OR Supreme Court are remarkably similar to those the WI Supreme Court found compelling. Here's the trial court opinion granting the plaintiffs a preliminary injunction (it was stayed by the state s.ct. pending appeal last night): documentcloud.org/documents/6893…
2/ In both WI and OR, (and many other states) the governor has multiple statutory authorities at her/his disposal to respond to a communicable disease emergency. Some of those authorities are subject to specific time limits, others are not.
3/ These authorities were adopted in multiple waves of emergency preparedness & response reform. E.g., in OR, the emergency response law is from 1949, public health emergency provisions date back to 2003 (w/ later amendments), plus a 2012 "catastrophic disaster" const'l amendment
Read 15 tweets
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Lindsay Wiley
@ProfLWiley
Sadly, we’ve progressed from “testing would be nice” to “nasty tests sometimes are negative and then positive so they’re not great.” It’s now clear we have to ease the harshest restrictions as carefully as possible, but in the absence of widespread testing and contact tracing.
I wish that weren’t the case. I wish we’d used the harsh measures imposed in March to rapidly ramp up public health infrastructure and testing capacity so the sacrifices made would result in a lasting reduction in deaths.
Each day we keep the harshest possible restrictions in place this spring/summer will make it harder to re-impose some or all of them when they may be most needed in fall/winter.
Read 8 tweets
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Lindsay Wiley
@ProfLWiley
Imagine two scenarios. In Scenario A, back in March, US decided to impose extreme #SocialDistancing short-term while immediately investing in massive roll-out of infrastructure to #TestTraceIsolate, i.e, what every pre-pandemic plan envisioned & several countries achieved. THREAD
2/ It would have made all the sense in the world to impose tough restrictions if we could’ve emerged with public health infrastructure in place to #TestTraceIsolate that let us resume a lot of economic/social/cultural/educational activity safely.
3/ In Scenario B, back in March, we have a crystal ball that tells us the president and Congress are NOT going to invest what's required for a massive roll-out of public health infrastructure to #TestTraceIsolate any time in the next 6 months.
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