Fear & Politics: Judges, lawyers reluctant to defend rights vs guv's, mayors' emergency power amid pandemic - Cook County Record - Liberty Justice Center

Fear & Politics: Judges, lawyers reluctant to defend rights vs guv’s, mayors’ emergency power amid pandemic – Cook County Record

This article by Stephanie N. Grimoldby was published May 24, 2022 in the Cook County Record.

The decision did not make as many headlines as it could have.

In February, Cook County Judge Sanjay Tailor struck down an effort by Cook County health officials to force a public school student to quarantine for 10 days, only because health officials believed the child may have been exposed to someone who later tested positive for Covid.

Tailor’s decision may have been the first of its kind – ever – in Cook County.

“Judge Sanjay Tailor wrote a great opinion on [how] these Covid mandates … are a huge restraint on children’s and parents’ liberties, and without a medical basis with clear and convincing evidence,” said attorney Lucas Fuksa, who represented the student and their family. “Judge Tailor said, ‘No, there’s nothing you’ve presented to warrant the authorization of a quarantine.’”

But Tailor’s decision may have been even more monumental for the stand it took, swimming against a general current of judicial rulings lined up in support of policies imposed by governors, mayors and an array of executive branch government agencies in the name of fighting Covid-19, policies pilloried by many for often overriding constitutional protections normally afforded to Americans, in ways most living Americans – or at least those who have never lived through world wars – have never experienced.

Fuksa, of the Chicago firm Fuksa Khorshid, commended the school district for ultimately seeking an order of quarantine from the Cook County Department of Public Health, an action Fuksa said is legally required if the quarantine is to extend beyond 48 hours. He and others who call themselves defenders of civil liberties have publicly stated there are some instances in which a person or child should be quarantined. But they must be provided due process, he said.

That argument has been advanced in several cases in Illinois, particularly those led by attorney Tom DeVore, with some success. However, those successes have been muddled by contrary appellate court rulings, which have threaded a needle of allowing questionable policies to stand, while not directly tossing out the legal claims at the heart of the case.

Appellate judges, for instance, have ruled government employers can enforce Covid vaccine and testing mandates on their workers, without providing due process, because those mandates are no different from other “workplace safety” rules.

Fuksa is currently litigating cases in which public school officials are arguing those “workplace safety” mandates can also be applied to school students, who are required by law to attend school, and are not employed by anyone.

“This is a huge restraint on people’s liberties, and we cannot just allow CCDPH to say this person was in close contact and, without anything more, they’re to be quarantined for 5 or 10 days,” said Fuksa. “Judge Tailor is one of the few who got it right, at least in Cook County.”

Covid-related restrictions mandated by the president, governors, mayors and federal agencies – whether ordering businesses and churches closed, requiring masks in schools or on airliners, or requiring people to receive new vaccines, among others – might have thrown up red flags during almost any other time in American history.

During the last two years, however, even as governments executed powers they had not deployed in decades, if ever – these constitutional infractions seemed to draw little objection, even from organizations and advocates who long have touted their commitment to defending the rights of those living in America.

But why has it taken so long, and proven so difficult, for courts in Cook County and elsewhere to defend civil liberties normally protected by the Constitution?

For Fuksa and other observers, like Daniel Suhr, managing attorney of the Liberty Justice Center, in Chicago, the answer is multi-faceted and complex.

But mostly, they said, the deference from the judiciary has been driven by a confluence of shifting politics and fear.

“It wasn’t really until the second year of the pandemic, and even the second half of the second year of the pandemic, that judges started to say, enough is enough, and we’re not going to give a blank check to the executive branch any more,” Suhr said. “I wish they had done it the whole time through.

“Judges are people, too, you always have to remember that.”

‘Poor reasoning from a legal standpoint’

“I think people legitimately feared Covid as this mass epidemic where people were dying left and right,” Fuksa said. “They were afraid of looking foolish (for) objecting to certain restrictions of liberties in an effort to prevent Covid from taking additional lives and impacting people health-wise.

“Then they started getting it themselves, and they saw that it was essentially a flu. People said, ‘Listen, there’s no reason to do all these things and to take such drastic measures to prevent people from getting the flu,” said Fuksa.

That realization took time, however. Clients weren’t exactly lining up at the beginning of the pandemic.

“Part of the explanation is, in order to have a case, you need a client,” Fuksa said. “To be fair to the attorneys that did something about it, there weren’t many people willing to do that.”

Not only were people afraid of objecting to civil liberty restrictions, but many were also fearful of creating worse policy.

“People were afraid of making bad law,” said Mark Chenoweth, president and general counsel for the New Civil Liberties Alliance.

For much of the past two years, the NCLA, based in the suburbs of Washington, D.C., has litigated cases across the country on behalf of people challenging Covid restrictions in a variety of settings.

“We’ve seen fear lead to bad results before,” he said. “The internment of Japanese-American citizens, that’s widely recognized as one of the worst Supreme Court decisions now, but at the time it was perceived as necessary, justified, but certainly driven by fear …”

Chenoweth said he believes “people will (similarly) look back even in 5 years, and certainly 20 years” and say of the current spate of legal decisions upholding Covid restrictions:

“Wow, that was a mistake; that was poor reasoning from a legal standpoint.”

An overly broad precedent?

Many lawyers and courts have stood by their pandemic-induced deference to enhance governmental powers by referring to the 1905 Supreme Court case, Jacobson v. Massachusetts.

In that decision, the U.S. high court upheld the authority of states to enforce mandatory vaccination laws. Cambridge minister Henning Jacobson had refused a compulsory vaccination for smallpox and was fined $5 – estimated to be approximately $150 today.

Chenoweth said Jacobson “has really been abused badly and misunderstood widely by those who have applied it way beyond what Jacobson stood for.”

Jacobson involved a state and local use of police power,” he said. “And there’s been a long understanding … that there is more power at the state and local level. There are specific federal powers Congress has approved by statute. Regardless of which administration you talk about, Trump and Biden act as though there’s some general federal emergency power. There just isn’t.”

Beyond the misunderstanding between federal and state police powers, the scope of Jacobson shouldn’t be used as widely as it has been, Chenoweth contended.

In recent months, the NCLA particularly has litigated numerous cases dealing with vaccine mandates, typically involving plaintiffs who have naturally acquired immunity from Covid but have been required to get vaccinated anyway.

The Supreme Court’s decision in Jacobson stood for fining someone for refusing an inoculation, which is different than the mandated vaccinations that have been at issue today, Chenoweth said.

“The holding of Jacobson is narrower than judges who have been applying it have pretended it [to be] – that it stands for something broader than it really stands for,” Chenoweth said. “I think that’s the root of the problem. Obviously, fear is in play here, but in terms of when you see otherwise astute legal observers say what’s happening is OK, it’s either because they have a misunderstanding of general police powers or Supreme Court precedent, specifically with Jacobson.”

Noah Smith-Drelich, assistant professor of law at Chicago-Kent College of Law, said it would be wrong to disregard Jacobson entirely, and that the case’s contributions to the framework of contemporary constitutional rights and liberties are important.

Smith-Drelich recently wrote an article published in the Southern California Law Review to explore the Constitution’s protections of movement and travel and how it can apply to quarantines, stay-at-home orders and similar health regulations.

“Stay-at-home orders like Illinois’s significantly impinge on the fundamental right to free movement,” Smith-Drelich wrote in his article. “Although this presents a significant hurdle, strict scrutiny should be far from a fatal pronouncement for such regulations. This is because strict scrutiny does not actually require a court to trade rights against the public’s health or vice versa; it is precisely regulations that match the demands of public health that should be upheld as constitutional. The crisis associated with the COVID-19 pandemic presents a good illustration of this: stay-at- home orders that closely track public health recommendations should survive strict scrutiny.”

Smith-Drelich wrote further that most stay-at-home orders, including the one imposed in Illinois by Gov. JB Pritzker, were burdensome, in the traditional sense of constitutional interpretation. But Smith-Drelich said they were not discriminatory; thus, he said the orders didn’t conflict with Article IV’s Privileges and Immunities Clause.

“So long as a public health regulation cannot be said to be ‘arbitrary or oppressive,’ courts have interpreted Jacobson to require that it be upheld; after all, under the deferential view, ‘all rights are subject to some invasion’ in times of perceived public health crisis,” Smith-Drelich wrote.

The way the Constitution’s protection works in the context of right to travel is that it pushes regulations to be better aligned with expert recommendations, he said.

“To the extent that regulations go beyond or work differently than what experts say we should do, then I think they’re more constitutionally suspect,” he said. “The China-style lockdown policy of today wouldn’t be constitutional. That’s not to say it wouldn’t be constitutional tomorrow or 6 months from now, because the situation on the ground changes. What is necessary or justified by compelling interest … is going to change on a week-to-week basis. There are policies that in 2014 would have been easily unconstitutional that in 2021 would be easily constitutional because the public health situation changed so much between 2014 and 2021.”

“I don’t think Jacobson says you have a constitutional right to travel or your right to travel is absolute,” he said. “I think what Jacobson stands for in this context is more, rights like your right to travel are subject sometimes to [restrictions] … . There are circumstances where the government can stop you from traveling and not violate your right to travel… because it protects unnecessary and overbroad rights to travel.”

Conflicts amid shifting priorities

Jacobson arguments aside, some feel that there has been – and continues to be – a definitive culture shift within civil liberties groups which has led to a shortage of those fighting for the rights of old.

“I think the biggest disappointment in this regard is the ACLU,” said Daniel Suhr, managing attorney at the Liberty Justice Center in Chicago. “Several years ago, there was an H1N1 (influenza) outbreak, and there was some discussion of having mandatory vaccinations against H1N1.

“The ACLU said, ‘No, we are for bodily autonomy, we are against mandatory vaccination.’ Here we are a little over a decade later, and the ACLU has put out a statement this time around saying they’re totally on board with mandatory vaccination and all the health care measures we’ve seen in the past two years.”

Suhr believes this is indicative of a broader trend among legal liberals, who seem to be abandoning many of the traditional commitments that used to characterize liberals.

“You look at who has shown up: It has been free market [proponents], religious public interest lawyers – civil liberties have not shown up,” said Suhr.

“This is the rise of ‘The Woke’ among liberals,” he said. “And unfortunately, ‘The Woke’s’ kind of traditional commitments are in conflict with traditional civil liberty commitments.”

A change in belief regarding free speech exemplifies how attitudes are shifting.

“Traditionally, left liberal legal groups have been all in favor of obscenity or porn [as expressions of free speech],” Suhr said. “The ACLU in the 1970s were defending the right of neo-Nazis to march through Skokie, Illinois.

“No way the ACLU of today would take that case, because if you’re in Black Lives Matter or LGBTQ, you’re going to see neo-Nazis as engaging in speech violence and they need to be canceled – we can’t allow that. There’s just no way the ACLU of today would take that case. They’ve just changed.”

Political beliefs also have played a big role in who has come out to fight for civil liberties, Fuksa said. A colleague warned him to carefully consider Covid-related litigation because it aligns with a certain political ideology, and he risked offending some of his current clients by taking on such cases.

For Fuksa, that didn’t matter. But for many lawyers and civil liberties groups, it matters greatly.

“It all depends on what the end goal is of protecting those liberties,” Fuksa said. “If the end goal doesn’t align with that organization’s political ideologies, they’re not going to care about it. The ACLU is a perfect example of this. Do you hear them championing any of these causes related to parents’ rights in the schools regarding not only Covid policies, but what children are taught with respect to sex ed, with respect to things such as critical race theory?

“If these organizations’ political ideals don’t align with the cause, they’re not going to take them on. Those biases, those ideologies, those beliefs of an individual or an organization will determine what causes they’re going to get behind.”

The same can be said about judges, he said. Initial civil liberty successes against Covid mandates in Illinois came from traditionally more conservative counties in southern and central Illinois, not democratically fueled Cook County.

“You have judges looking at the same law and same mandates, and they come to completely different conclusions,” he said. “Justice is not blind. Justice is also motivated by political beliefs.”

A better approach?

In his article, Smith-Drelich argues that litigators facing policy in public health contexts that impinges on people’s rights should shift their focus.

Under the approach employed in legal challenges thus far, Smith-Drelich said plaintiffs may have placed courts in a bad position.

Rather than trying to sue to stop the policy, they perhaps should consider a substantive rights approach, based on collecting damages to compensate for the violations on their rights.

While there is something unsatisfying about relying on damages, “the alternative is putting courts in the position – during what often feels like a crisis moment – of being asked to stop the policy,” he said.

“Courts are pretty unwilling to do that, and I think courts should be pretty unwilling to do that, to second-guess policymakers. Courts don’t have the expertise that policymakers have; courts don’t have the time or resources to make these sorts of decisions, so courts are reluctant to issue equitable relief in times of emergency.”

This has resulted in an all or nothing “stop the policy” litigation, and most of those challenges have failed, Smith-Drelich said.

A better strategic approach, he argued, which would be “more likely to succeed when it should succeed and more aligned to do what I think the Constitution says” is to shift to more damages relief.

“Indeed, this exploration suggests that substantive rights more generally present a promising lens for viewing these sorts of quarantine and public health-related questions,” he wrote in his article.

“More broadly, this discussion also suggests the need for courts, litigants, and academics alike to embrace the sort of ex post relief that commonly accompanies substantive rights claims, rather than the ex ante equitable relief that is favored in the context of procedural rights claims (and in quarantine law currently) … . The result will be more state action protective of the public health, but also more instances in which victims of state overreach are made whole through ex post damage awards.”

Legislative oversight, judicial engagement

Suhr said there are several lessons to be learned by this pandemic. First, if a pandemic ever hits the U.S. again, legislators need to stand up and take their place as policymakers when it’s clear there is a long-term problem and not a short-term crisis.

Illinois statute says the governor has emergency powers for 30 days, Suhr said. But Illinois is in the 26th 30-day period of Pritzker governing by emergency powers assumed under a 30-day declaration of statewide disaster.

Courts have almost unanimously upheld Pritzker’s argument Illinois’ disaster response law him to continue to reissue such 30-day emergency declarations, until he alone determines the disaster has ended.

“If there is a tornado in downstate Illinois that destroys part of a community, we want the immediate response by the governor to get the National Guard … to get the DNR to get down there. That’s what we expect from the governor in crisis,” he said. “But when we’re talking about long-term policy problems, legislatures should be making long-term policy choices. In Illinois, the legislature has totally abdicated any checks and balances.”

To that point, Suhr suggested a dire need for legislative oversight laws that provide robust checks and balances of the exercise of emergency powers.

“If you take a step back to think about how much power was exercised – closing every business, closing churches, closing schools, locking people in their own homes – that is incredible power,” he said. “I don’t think we’ve had an exercise of power like that since WWII. A huge lesson needs to be assuring prompt accountable legislative oversight. And the second is judicial oversight.”

For first year of the pandemic, judges were not willing to push back on exercises of executive power, showing extreme deference to executive authority.

“I think judges were understandably as scared as the rest of us that we would see many, many more people dying if the government didn’t have substantial authority to deal with the pandemic,” said Suhr. “That is an understandable human reaction but, again, I think the government’s own hypocrisy really exposed the need for greater judicial engagement.”

Read the full article in the Cook County Record.

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