🔥🔥🔥#JacobsonWatch🔥🔥🔥 @weparmet is *the* authority. As COVOD court challenges continue, “citations to Jacobson are bound to proliferate.” Parmet “situates Harlan’s nuanced & Delphic opinion in its jurisprudential & public health context.”
https://twitter.com/BULawReview/status/1280124123180601345
"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 Harlan’s 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 Harlan’s opinion *did not* call for a different approach to constitutional review during an emergency."
"Moreover, Jacobson did not and could not have affirmed the suspension of heightened standards of review for specific constitutional claims, nor did it say that the traditional tiers of constitutional scrutiny did not apply."
"Indeed, in 1905, the Court had not yet recognized the specific rights at issue in most of the COVID-19 cases, nor had it adopted tiers of constitutional scrutiny.”
"Jacobson has endured, in part, precisely because it eschewed simple tests. It exclaimed the importance of public health protection and recognized that liberty can require limitations on individual rights and offered a mélange of criteria for when courts should intervene...."
"the one thing that Jacobson did not offer was a clear and easy test. Nevertheless, in recent weeks, many courts have reduced it to such."
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