As if to respond to a sibling federal court’s recent order upholding a covid-reaction shut down orders, the U.S. District Court for the Western District of Pennsylvania’s opinion in County of Butler v. Wolf, No.2:20-cv-00677 (Sep. 14, 2020) reaches an entirely different conclusion:

The fact is that the lockdowns imposed across the United States in early 2020 in response to the COVID-19 pandemic are unprecedented in the history of our Commonwealth and our Country. They have never been used in response to any other disease in our history. They were< not recommendations made by the CDC. They were unheard of by the people this nation until just this year. It appears as though the imposition of lockdowns in Wuhan and other areas of China-a nation unconstrained by concern for civil liberties and constitutional norms-started a domino effect where one country, and state, after another imposed draconian and hitherto untried measures on their citizens. The lockdowns are, therefore, truly unprecedented from a legal perspective. But just because something is novel does not mean that it is unconstitutional.

Slip op. at 44.

As they say, “there’s a lot to unpack” in that statement. The short story is that the court held that portions of the Pennsylvania governor’s covid orders are unconstitutional, but not merely because they are unprecedented (although that is a part of it).

There’s a lot being written about this decision, and we think you should read the entire thing, even if there’s no takings component. Here are your two big takeaways:

1. The court, in contrast to other decisions, held that there’s no “emergency” standard of review in which a court will defer even more to the elected branches actions. The court concluded that plain-old tiered scrutiny works just fine, and that simply because the other branches assert there’s an emergency doesn’t mean that the judiciary just rubber-stamps whatever they do. The court rejected that Jacobson v. Massachusetts, 197 U.S. 11 (1905) teaches otherwise. That’s the case in which the Court defined “real liberty,” and which has been most prominently applied in emergency order cases to reject due process challenges, recognizing superdeference to emergency measures.

2. The court also — as the headline to this post quotes — determined that the orders violated substantive due process. Yes, substantive due process. Are arbitrary and capricious! Telling the entire populace to stay in is not a “quarantine” (see here for another case on the definition of quarantine), and the stay-home orders violate the fundamental right to travel. Property mavens should not miss page 49 forward in the slip opinion. The court concluded that Pennsylvania’s differentiating between “life-sustaining” and “non-life-sustaining” businesses was arbitrary. First, however, it concluded that the right to make a living is a “property” interest and liberty right protected from arbitrary interference by the government:

The emphasis given to economic substantive due process reached its apex in the Lochner era, Lochner v. New York, 198 U.S. 45 (1905), and was considerably recalibrated and de-emphasized by the New Deal Supreme Court and later jurisprudence. Nevertheless, our Supreme Court has never repudiated the recognition that a citizen has the right to work for a living and pursue his or her chosen occupation.

The Third Circuit has recognized “[t]he right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within both the ‘liberty’ and the ‘property’ concepts of the Fifth and Fourteenth Amendments.” Piecknick v. Comm. of Pa., 36 F.3d 1250, 1259 (3d. Cir. 1994) (citing Green v. McElroy, 360 U.S. 474, 492 (1959); Truax, 239 U.S. at 41).

Slip op. at 52.

Having found a property and liberty interest, the court applied rational basis review and struck down the essential/non-essential distinction. Rational basis being used to strike down for lack of actual rationality? What gives? The government never defined what a “life-sustaining” business is, and how it might differ from a “non-life-sustaining” one. That, to the court, meant the shut down orders were arbitrary and irrational, even applying rational basis review (calling Justice Kennedy!).

So what’s next? We’re guessing that the midnight oil is already burning bright in the Pennsylvania Attorney General’s offices, and that an appeal — maybe even a request for expedited consideration — is in the cards.

Will this survive Third Circuit review? Will this decision be a model for other challenges elsewhere? Stay tuned as always.

Opinion, County of Butler v. Wolf, No. 2:20-cv-00677-WSS (W.D. Pa. Sep. 14, 2020)