Eric Posner on Why Courts Should Stay Out of Emergency Public Health Matters

You can sue to stop lockdowns, but you can’t sue to get them. That’s dangerous.

Attorney General William P. Barr announced last week a new Justice Department policy to prevent “overreach” by governors and other local authorities seeking to contain the coronavirus pandemic. The department, he wrote in a memo to U.S. attorneys across the country, will “monitor state and local policies and, if necessary, take action to correct them.” Earlier, on Fox News, Barr expressed his own views on the matter: “I think we have to allow people to adapt more than we have, and not just tell people to go home and hide under their bed.”

Several federal judges agree. In a decision issued the day before Easter, U.S. District Judge Justin Walker blocked, on First Amendment grounds, a supposed prohibition on Easter services that, he said, had been issued by the mayor of Louisville — though it was not clear that the mayor had done more than strongly discourage public gatherings. On Saturday, the Sixth Circuit Court of Appeals similarly held that an order prohibiting mass gatherings in Kentucky could not be applied to a church service that adhered to social-distancing guidelines.

Aggressive interventions by the federal government and courts in states’ efforts to manage the pandemic are a dangerous but predictable development in these polarized times. While most civil liberties lawsuits against state stay-at-home orders have failed, there are sure to be more in the coming months. And when states reissue those orders to contain local outbreaks and the predicted second wave of contagion in the fall, courts will again be called on to evaluate the age-old conflict between civil liberties and public safety.

There are powerful reasons, however, for courts to stay out of emergency public health matters. Chief among them is a little-understood asymmetry in the way our judicial system responds to complaints about government misbehavior. When the government issues orders that restrict liberties, our constitutional tradition allows affected people to ask judges to block those orders. But when the government fails to issue orders, when it underreaches rather than overreaches, citizens have no right to judicial review. Courts do not recognize a constitutional right to health or safety; they do not allow people to sue for orders compelling the government to act.

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