In Butler v. Wolf, a federal judge has declared PA's gathering limits, stay at home order & prohibition on non-essential business operations (should they be reinstated) unconstitutional under the 1st and 14th Amendments.…
The court finds gathering limits trigger - & fail - intermediate scrutiny b/c they aren't narrowly tailored. Same argument made by Kavanaugh & others in religious liberty cases: "commercial gatherings" (aka retail shopping) are permitted while other gatherings aren't.
Following a few other judges, Stickman points to inconsistency of officials allowing & participating in protests against police violence, which exceeded permitted limits on gatherings.
Stickman also finds the classification of life-sustaining businesses violates equal protection because it fails rational basis review (and out-there holding)...
But, most controversially, the judge finds the prohibition on business that isn't life-sustaining violates a constitutionally protected right to earn a living, noting that the Supreme Court has never expressly repudiated Lochner v. New York (a *really* out-there holding).
I have to teach a class now, but I'll be back with more on this.
My essay w/ @steve_vladeck is cited very favorably by the court for the assertion that the Supreme Court's 1905 opinion in Jacobson shoudn't be read as requiring the judiciary to apply special standards of review during emergencies.
Our essay doesn't support revival of Lochnerism or other misapplications of ordinary standards of review.

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More from @ProfLWiley

25 Sep
The Public Health Dir. for Boulder County, CO has issued an order prohibiting gatherings of any size for 18-22 year olds & ordering residents of 37 specified addresses to stay at home with narrow exceptions.…
Fines of up to $5000. Exceptions for approved educational activities, religious rites & worship services. Addresses subject to SAH order appear to be on campus residence halls and off-campus congregate housing.
The order also includes several provisions that apply exclusively to CU students, incl. a requirement to report mode of travel & destination if moving to an alternate location (e.g., moving back home), references possibility health dept may deny approval/prohibit relocation
Read 8 tweets
1 Sep
I've been speculating since Feb. abt whether CDC might push the envelope on what Section 361 of the Public Health Service Act authorizes. I didn't expect it to come in the form of a federal eviction moratorium. Wow. I definitely expect this to be challenged in court.
Note: some folks are focusing on 361's quarantine provisions, but 361(a) - aka 254(a) - is broader than quarantine authority.…
Read 20 tweets
9 Aug
Some of what we've learned about health behavior re: chronic disease prevention is highly applicable to pandemic mitigation....
Read 8 tweets
8 Aug
The mistake the US makes again and again is assuming public health infrastructure will magically appear when we need it. It requires investment. That investment still hasn’t been made.
Not only are the numbers of tracers inadequate to meet our needs (even if would could return to suppression mode), many are working for hospital systems & private contractors following protocols that aren’t designed for true epidemiological investigations/cluster busting.
And even if we had enough tracers, we don’t have enough tests. States are burning through the supplies they have & struggling to buy more. Even if Congress could pass a bill, the serious contenders fall far, far short of allocating enough funding to ramp up testing.
Read 7 tweets
7 Aug
This is a difficult message to convey. Is acquired immunity helping to bend the curve (and sustain suppression) in places that have been hard-hit? Maybe. Should that be interpreted as an “all clear” signal in places like NY, etc? Not at all.
As with everything else about the pandemic, it’s not one thing alone. It appears to be a combination of some degree of acquired immunity plus some degree of sustained reduction in contacts outside the home that’s at work in hard-hit places.
And it’s unclear how long the protective effect of a 20% infection rate might last. Key, then, not to relax restrictions on high-risk settings (bars, indoor dining) by too much, even in places that seem to be doing well.
Read 5 tweets
7 Aug
I'll say it again. If there's a federal commitment to ramping up the "aggressive public health measures" cited here (testing, tracing, cluster busting), which other countries have used to sustain suppression post-lockdown, then a new round of tight restrictions makes sense...
But calling for "new, tighter lockdowns" with zero promise that public health infrastructure will be funded & coordinated to pick up where "lockdowns" leave off is irresponsible.
Read 7 tweets

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