During this spring of COVID-19, Americans are facing numerous state and local government-imposed restrictions that would have seemed implausible a few short months ago. While many of these restrictions seem to be unquestionably warranted, there have been others that have the potential to negatively impact fundamental rights. From abortion restrictions to gun control, these actions threaten liberty in the name of police powers. During this time of crisis, there is a need for courts to be especially vigilant. Throughout the nation’s history, the concept of emergency power has been used to justify restrictions on the rights of Americans, with tragic results.
In order to protect rights, however, courts must understand the framework. While many cases seem to suggest that government action in the face of an emergency should be given a deferential standard of review, this is an incorrect reading of the precedent, at least where fundamental rights are concerned. Instead, emergency regulations that burden fundamental rights are subject to the same tiered scrutiny that applies in normal times. While an emergency may create a “compelling interest” that would allow government to invade rights in a manner it might not in normal times, the standard does not change. Rather, the nature of the emergency is already “baked in” to the tiered scrutiny test.
Under a correct application of tiered scrutiny, almost all the emergency regulations that have been enacted would still be constitutional. However, some actions, such as regulations on the sale of firearms and regulations on the provision of abortion deserve a closer look. Fortunately, our constitutional system is already well-equipped to balance rights and safety. Courts simply need to apply it properly.
Jeffrey D. Jackson, Tiered Scrutiny in a Pandemic, 12 ConLawNOW 39 (2020)