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Over the past few months, I have written several blog posts about how the courts have approached the 1st, 2nd, and 14th Amendments during the pandemic. Those posts will serve as the basis for a lengthy article. I should be able to post it to SSRN by the end of this month. It is comprehensive.

For now, I will flag a portion of Judge Stickman’s decision in the Pennsylvania lockdown case. (Eugene flagged it earlier). He accurately stated the place Jacobson occupies in our constitutional canon.

Jacobson was decided over a century ago. Since that time, there has been substantial development of federal constitutional law in the area of civil liberties. As a general matter, this development has seen a jurisprudential shift whereby federal courts have given greater deference to considerations of individual liberties, as weighed against the exercise of state police powers. That century of development has seen the creation of tiered levels of scrutiny for constitutional claims. They did not exist when Jacobson was decided. While Jacobson has been cited by some modern courts as ongoing support for a broad, hands-off deference to state authorities in matters of health and safety, other courts and commentators have questioned whether it remains instructive in light of the intervening jurisprudential developments.

In Bayley’s Campground, Inc. v. Mills, _ F. Supp. 3d _, 2020 WL 2791797 (D. Me. May 29, 2020), a district court examined whether the governor of Maine’s emergency order requiring, inter alia, visitors from out of state to self-quarantine, was constitutional. As here, before proceeding to its analysis of the substantive legal issues, the court examined how it should weigh the issues—according to a very deferential analysis purportedly consistent with Jacobson, as advocated by the governor, or under “regular” levels of scrutiny advocated by the plaintiffs. The district court examined Jacobson and, specifically, whether it warranted the application of a looser, more deferential, standard than the “regular” tiered scrutiny used on constitutional challenges. It observed: “[i]n the eleven decades since Jacobson, the Supreme Court refined its approach for the review of state action that burdens constitutional rights.” Id. at *8 (citing Planned Parenthood v. Casey, 505 U.S. 833, 857 (1992)). See also Planned Parenthood, 505 U.S. at 857 (citing Jacobson, 197 U.S. 24-30) (affirming that “a State’s interest in the protection of life falls short of justifying any plenary override of individual liberty claims.”). The district court declined to apply a standard below those of the established tiered levels of scrutiny. It stated:

[T]he permissive Jacobson rule floats about in the air as a rubber stamp for all but the most absurd and egregious restrictions on constitutional liberties, free from the inconvenience of meaningful judicial review. This may help explain why the Supreme Court established the traditional tiers of scrutiny in the course of the 100 years since Jacobson was decided. Bayley’s Campground, at *8.

Judge Strickman is exactly right. Jacobson, on its own terms, does not apply to these sorts of COVID-19 cases. Now that we have moved from the early days of the pandemic, I hope courts can approach these unprecedented lockdown measures with more consideration.

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I blogged below about the general analysis in Judge William S. Stickman IV’s decision in County of Butler v. Wolf (W.D. Pa.), as well as its application to the gatherings ban and the stay-at-home order.  But the court also concluded that the business shutdown also violated substantive due process (as well as equal protection), because “The Fourteenth Amendment guarantees a citizen’s right to support himself by pursuing a chosen occupation”—and even if that right is subject only to rational basis scrutiny, the shutdown failed that scrutiny because it was too arbitrary:

The Supreme Court has recognized that the “core of the concept” of substantive due process is the protection against arbitrary government action. Indeed, “the touchstone of due process is protection of the individual against arbitrary actions of government ….” Rational basis review is a forgiving standard for government acts, but it “is not a toothless one ….” As a general matter, the rational basis test requires only that the governmental action “bear[] a rational relationship to some legitimate end.” Conversely, actions which are irrational, arbitrary or capricious do not bear a rational relationship to any end….

The record shows that the Governor’s advisory team, which designated the Business Plaintiffs and countless other businesses throughout the Commonwealth as “non-life-sustaining” and, thereby, closing them, did so with no set policy as to the designation and, indeed, without ever formulating a set definition for “life-sustaining” and, conversely “non-life-sustaining.” The terms “life-sustaining” and “non-life-sustaining” relative to businesses are not defined in any Pennsylvania statute or regulation…. The record demonstrates that the policy team’s unilateral determination as to which classes of businesses would be classified as “life-sustaining” was never formalized and the team never settled on a specific definition of “life-sustaining” ….

Mr. Robinson said that [the policy team] used the NAICS system to determine which businesses were “life-sustaining,” although the NAICS does not actually use that categorization. He acknowledged that the team simply applied their common-sense judgment as to what was, or was not, “life-sustaining.” In doing so, they did not confine themselves to “the formality of kind of enshrining a definition somewhere.” So, without a definition, how can one determine which businesses can stay open and which must close? Mr. Robinson said that one should look to the policy team’ s list (of “life-sustaining” businesses). Essentially, a class of business is “life-sustaining” if it is on the list and it is on the list because it is “life-sustaining.” …

The manner in which Defendants, through their policy team, designed, implemented, and administered the business closures is shockingly arbitrary. The policy team was not tasked with formulating a theoretical policy paper or standard to categorize abstract classes of business or NAICS codes. Rather, it had the authority to craft a policy, adopted wholesale by Defendants, that had an immediate impact on the Business Plaintiffs and countless other businesses, employers, and employees across the Commonwealth. Despite the fact that their decisions had the potential (and in many cases the actual effect) of destroying businesses and putting employees out of work, Defendants and their advisors never formulated a set, objective definition in writing of what constitutes “life-sustaining.”

The Court recognizes that Defendants were acting in haste to address a public health situation. But to the extent that Defendants were exercising raw governmental authority in a way that could (and did) critically wound or destroy the livelihoods of so many, the people of the Commonwealth at least deserved an objective plan, the ability to determine with certainty how the critical classifications were to be made, and a mechanism to challenge an alleged misclassification. The arbitrary design, implementation, and administration of the business shutdowns deprived the Business Plaintiffs and their fellow citizens of all three.

Another layer of arbitrariness inherent in the business shutdown components of Defendants’ orders are that many “non-life-sustaining” businesses sell the same products or perform the same services that were available in stores that were deemed “life-sustaining.” For example, Plaintiff R.W. McDonald & Sons is a small appliance and furniture store that was deemed a “non-life-sustaining” business and required to close. But larger retailers selling the same products, such as Lowes, The Home Depot, Walmart and others remained opened. Mr. McDonald stated that his business “lost approximately $300,000 in revenue” and that his business has been “financially devastated.” He also averred that he lost business to the big-box retailers that were permitted to remain in operation….

But the court rejected the equal protection challenge to the different reopening schedules in different regions:

The Court holds that Defendants had a rational basis for rolling out their reopening plan on a regional basis based on counties. Doing so recognized and respected the differences in population density, infrastructure and other factors relevant to the effort to address the virus. The Business Plaintiffs point to similarity between their area and neighboring counties permitted to open earlier, but rational basis does not require the granularity of a neighborhood by neighborhood plan. Distinctions between counties are a historically accepted manner of statewide administration and pass scrutiny here.

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I blogged below about the general analysis in Judge William S. Stickman IV’s decision in County of Butler v. Wolf (W.D. Pa.), as well as its application to the gatherings ban. But the court also struck down the Governor’s order to “stay-at-home except as needed to access, support or provide life sustaining business, emergency, or government services”; that order, the court concluded, violates substantive due process:

Although this nation has faced many epidemics and pandemics and state and local governments have employed a variety of interventions in response, there have never previously been lockdowns of entire populations—much less for lengthy and indefinite periods of time…. [T]he lockdown effectuated by the stay­at-home orders is not a quarantine. A quarantine [under Pennsylvania law] requires, as a threshold matter, that the person subject to the “limitation of freedom of movement” be “exposed to a communicable disease.” Moreover, critically, the duration of a quarantine is statutorily limited to “a period of time equal to the longest usual incubation period of the disease.” The lockdown plainly exceeded that period….

Defendants attempt to justify their extraordinary “mitigation” efforts by pointing to actions taken to combat the Spanish Flu pandemic a century ago. Ms. Boateng testified that, in response to the Spanish Flu, “much of the same mitigation steps were taken then, the closing of bars, saloons, cancellation of vaudeville shows, as they called them, and cabarets, the prohibition of large events. So some of these same actions that we’re taking now had been taken in the past.” But an examination of the history of mitigation efforts in response to the Spanish Flu—by far the deadliest pandemic in American history—reveals that nothing remotely approximating lockdowns were imposed.

Records show that on October 4, 1918, Pennsylvania Health Commissioner B. Franklin Royer imposed an order which closed “all public places of entertainment, including theaters, moving picture establishments, saloons and dance halls and prohibit[ed] all meetings of every description until further notice.” The order left to local officials the decision on whether to cancel school and/or religious services. The restrictions were lifted on November 9, 1918…. [S]tate and local mitigation measures were of similarly short durations across the nation. While, unquestionably, states and local governments restricted certain activities for a limited period of time to mitigate the Spanish Flu, there is no record of any imposition of a population lockdown in response to that disease or any other in our history….

[Still,] just because something is novel does not mean that it is unconstitutional….

[I]n Lutz v. City of York, 899 F.2d 255 (3d Cir. 1990). In Lutz, the Third Circuit examined a municipal ordinance regulating car cruising and unequivocally held that “the right to move freely about one’s neighborhood or town, even by automobile, is indeed, ‘implicit in the concept of ordered liberty’ and ‘deeply rooted in the Nation’s history.'” … [The Third Circuit applied intermediate scrutiny to the cruising ordinance, but t]he Court wonders whether the lockdown effectuated by the stay-at-home provisions of Defendants’ orders are of such a different character than the municipal car cruising ordinance as would warrant the imposition of strict scrutiny.

{[And courts have also] long recognized that beyond the right of travel, there is a fundamental right to simply be out and about in public. City of Chicago v. Morales (1999) (striking down an antiloitering ordinance aimed at combatting street gangs and observing that “the freedom to loiter for innocent purposes is part of the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment.”). See also Papachristou v. Jacksonville, 405 U.S. 156, 164-65 (1972) (citing a Walt Whitman poem in extolling the fundamental right to loiter, wander, walk or saunter about the community); Bykofsly v. Borough of Middletown, 429 U.S. 964 (1976) (Marshall, J., dissenting) (“The freedom to leave one’s house and move about at will is of the very essence of a scheme of ordered liberty, … and hence is protected against state intrusions by the Due Process Clause of the Fourteenth Amendment.”) (internal citation and quotation marks omitted)); Waters v. Barry, 711 F. Supp. 1125, 1134 (D.D.C. 1989) (referencing Papachristou and stating “[t]he right to walk the streets, or to meet publicly with one’s friends for a noble purpose or for no purpose at all—and to do so whenever one pleases—is an integral component of life in a free and ordered society.”).} …

While the Third Circuit applied intermediate level scrutiny to the limited time, place and manner restrictions on the right to intrastate travel imposed by the [anti-cruising] ordinance at issue, there are substantial grounds to hold that strict scrutiny should apply to the stay-at-home provisions of Defendants’ orders. The intrusions into the fundamental liberties of the people of this Commonwealth effectuated by these orders are of an order of magnitude greater than any of the ordinances examined in right to travel cases, loitering and vagrancy cases or even curfew cases.

Defendants’ stay-at-home and business closure orders subjected every Pennsylvanian to a lockdown where he or she was involuntarily committed to stay-at-home unless he or she was going about an activity approved as an exception by the orders. This is, quite simply, unprecedented in the American constitutional experience. The orders are such an inversion of the usual American experience that the Court believes that no less than the highest scrutiny should be used.

However, the Court holds that the stay-at­-home orders would even fail scrutiny under the lesser intermediate scrutiny used by the Third Circuit in Lutz. A critical element of intermediate scrutiny is that the challenged law be narrowly tailored so that it does “not burden more conduct than is reasonably necessary.” The stay-at-home orders far exceeded any reasonable claim to be narrowly tailored.

Defendants’ orders subjected every Pennsylvanian to a lockdown where he or she was involuntarily committed to stay-at-home unless he or she was going about an activity approved as an exception by the orders…. When in place, the stay-at-home order requires a default of confinement at home, unless the citizen is out for a purpose approved by Defendants’ orders. Moreover, this situation applied for an indefinite period of time. This broad restructuring of the default concept of liberty of movement in a free society eschews any claim to narrow tailoring.

In addition, the lack of narrow tailoring is highlighted by the fact that broad, open-ended population lockdowns have never been used to combat any other disease. In other words, in response to every prior epidemic and pandemic (even more serious pandemics, such as the Spanish Flu) states and local governments have been able to employ other tools that did not involve locking down their citizens. Although it is the role of the political branches to determine which tools are suitable to address COVID-19, the 2017 CDC guidance highlights the fact that governments have access to a full menu of individual and community interventions that are not as intrusive and burdensome as a lockdown of a state’s population.

Finally, the Court observes that the suspension of the operation of the stay-at-home order highlights that it “burdens more conduct than is reasonably necessary.” In other words, Defendants are currently using means that are less burdensome to the rights of a free people.

The Court declares, therefore, that the stay-at-home components of Defendants’ orders were and are unconstitutional. Broad population-wide lockdowns are such a dramatic inversion of the concept of liberty in a free society as to be nearly presumptively unconstitutional unless the government can truly demonstrate that they burden no more liberty than is reasonably necessary to achieve an important government end. The draconian nature of a lockdown may render this a high bar, indeed.

The court also held that the challenge to the stay-at-home order is not moot, even though it has been “suspended,” because it hasn’t been withdrawn outright and may yet be reinstated. I’m not sure whether the court’s decision, either on the substance or the mootness, was sound, but I thought it worth passing along. I also have a separate post on the court’s striking down the business shutdown order.

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Last August, President Trump issued Executive Order 13807, “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects,”  which instructed federal agencies to “ensure that the Federal environmental review and permitting process for infrastructure projects is coordinated, predictable, and transparent.”

Pursuant to this instruction, in January the Council on Environmental Quality proposed far-reaching revisions to the regulations instructing federal agencies how to comply with the National Environmental Policy Act (NEPA), which requires that federal agencies complete environmental impact statements (EISs) before undertaking major actions that have a significant effect on the environment.

As the CEQ noted, federal NEPA regulations had not been meaningfully revised in over forty years. In that time, the costs of NEPA compliance—in terms of both time and money—have increased substantially, and far exceed what CEQ had anticipated. In 1981, CEQ predicted that the EIS process would generally take less than a year. In practice, however, the EIS process has taken far longer. According to CEQ, the “average” time for an EIS and agency decision is over four years, and the median time is over three years. The typical EIS is also something of a tome, as the average length is 661 pages. (When CEQ adopted its first NEPA regulations, it expected the average EIS would be closer to 150 pages.)

In order to address the costs and delays associated with NEPA compliance, CEQ proposed narrowing the range of impacts and effects agencies must consider, as well as narrowing the universe of agency actions that trigger NEPA’s requirements. Among other things, agencies are not required to assess the cumulative or indirect effects of agency actions. Further, agencies are not required to consider policy alternatives that lie outside an agency’s jurisdiction or legal authority. CEQ also proposed setting presumptive page and time limits on final EISs.

On July 16, CEQ were finalized its proposed reforms, prompting immediate legal challenges. In total, four separate lawsuits against the new NEPA regulations were filed by environmentalist groups and blue states. In only one of the four suits did the plaintiffs seek an injunction or stay to prevent the rules from taking effect, and that motion was denied in a ruling last Friday. As a consequence the new NEPA rules took effect today (though you would not know it from reading most national newspapers). James McElfish of the Environmental Law Institute has a useful overview of the final revisions on ELI’s Vibrant Environment blog.

Some federal agencies have eschewed reliance upon Chevron deference when adopting new regulations. The Environmental Protection Agency (EPA), for example, has argued that some of its regulatory reforms are compelled by the plain text of the relevant statutes. CEQ, on the other hand, explicitly argues that these new regulations “embody CEQ’s interpretation of NEPA for Chevron purposes.” CEQ further argues that its interpretation of NEPA’s requirements preempts any alternative interpretations previously offered by any other federal agencies, and that its new rules override any preexisting agency regulations or guidelines purporting to require more extensive procedures. In other words, the new regulations detail what is both the floor and the ceiling of what federal agencies are expected to do in order to comply with NEPA.

The various legal challenges to the new NEPA rules will proceed, and one of them may eventually succeed. In the meantime, federal agencies will have an easier time complying with NEPA’s requirements, and it will be more difficult for environmentalist and NIMBY groups to use NEPA to obstruct infrastructure and other federal projects.

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In today’s decision in County of Butler v. Wolf (W.D. Pa.), Judge William S. Stickman IV broadly struck down the Pennsylvania shutdown orders, reasoning:

[1.] The court held that Jacobson v. Massachusetts (1905), which ruled in favor of broad government power in an epidemic, should not be applied, and instead the government’s heightened interests in public health should be considered within the normal framework of constitutional scrutiny (e.g., in deciding whether a law is narrowly tailored to an important government interest):

Jacobson was decided over a century ago. Since that time, there has been substantial development of federal constitutional law in the area of civil liberties. As a general matter, this development has seen a jurisprudential shift whereby federal courts have given greater deference to considerations of individual liberties, as weighed against the exercise of state police powers. That century of development has seen the creation of tiered levels of scrutiny for constitutional claims. They did not exist when Jacobson was decided. While Jacobson has been cited by some modern courts as ongoing support for a broad, hands-off deference to state authorities in matters of health and safety, other courts and commentators have questioned whether it remains instructive in light of the intervening jurisprudential developments….

The Court has reviewed {Lindsay F. Wiley & Stephen I. Vladeck, Coronavirus, Civil Liberties, and the Courts: the Case Against “Suspending“ Judicial Review, 133 Harv. L. Rev. F. 179 (2020)} … and finds it both instructive and persuasive. There, the learned professors argue that Jacobson should not be interpreted as permitting the “suspension” of traditional levels of constitutional scrutiny in reviewing challenges to COVID- 19 mitigation measures…. The Court shares [these concerns] …. The Court will apply “regular” constitutional scrutiny to the issues in this case. Two considerations inform this decision—the ongoing and open-ended nature of the restrictions and the need for an independent judiciary to serve as a check on the exercise of emergency government power….

The Court closes this Opinion as it began, by recognizing that Defendants’ actions at issue here were undertaken with the good intention of addressing a public health emergency. But even in an emergency, the authority of government is not unfettered. The liberties protected by the Constitution are not fair-weather freedoms—in place when times are good but able to be cast aside in times of trouble.

There is no question that this Country has faced, and will face, emergencies of every sort. But the solution to a national crisis can never be permitted to supersede the commitment to individual liberty that stands as the foundation of the American experiment. The Constitution cannot accept the concept of a “new normal” where the basic liberties of the people can be subordinated to open-ended emergency mitigation measures. Rather, the Constitution sets certain lines that may not be crossed, even in an emergency. Actions taken by Defendants crossed those lines. It is the duty of the Court to declare those actions unconstitutional. Thus, consistent with the reasons set forth above, the Court will enter judgment in favor of Plaintiffs.

[2.] The court then concluded that the limits on nonreligious gatherings (“25 persons for indoor gatherings and 250 persons for outdoor gatherings,” “specifically exempt[ing] religious gatherings and certain commercial operations”) violate the Assembly Clause. The court concluded the restrictions were content-neutral, and therefore applied intermediate scrutiny—but held that the restrictions failed this scrutiny:

Defendants’ congregate limits are not narrowly tailored. Rather, they place substantially more burdens on gatherings than needed to achieve their own stated purpose. This is not a mere supposition of the Court, but rather, is highlighted by Defendants’ own actions. While permitting commercial gatherings at a percentage of occupancy may not render the restrictions on other gatherings content-based, they do highlight the lack of narrow tailoring.

Indeed, hundreds of people may congregate in stores, malls, large restaurants and other businesses based only on the occupancy limit of the building. Up to 20,000 people may attend the gathering in Carlisle (almost 100 times the approved outdoor limit!)- with Defendants’ blessing. Ostensibly, the occupancy restriction limits in Defendants’ orders for those commercial purposes operate to the same end as the congregate gathering limits-to combat the spread of COVID-19. However, they do so in a manner that is far less restrictive of the First Amendment right of assembly than the orders permit for activities that are more traditionally covered within the ambit of the Amendment­ political, social, cultural, educational and other expressive gatherings.

Moreover, the record in this case failed to establish any evidence that the specific numeric congregate limits were necessary to achieve Defendants’ ends, much less that “[they] target and eliminate no more than the exact source of the ‘ evil’ [they] seek to remedy.” [Sam Robinson, a Deputy Chief of Staff to the Governor] testified that the congregate limits were designed to prevent “mega-spreading events.” However, when asked whether, for example, the large protests—often featuring numbers far in excess of the outdoor limit and without social distancing or masks—led to any known mega-spreading event, he was unable to point to a single mega-spreading instance. (ECF No. 75, p. 155) (“I am not aware specifically. I have not seen any sort of press coverage or, you know, CDC information about that. I have not seen information linking a spread to protests.”).

Further, the limitations are not narrowly tailored in that they do not address the specific experience of the virus across the Commonwealth. Because all of Pennsylvania’ s counties are currently in the “green phase,” the same restrictions apply to all. Pennsylvania has nearly fourteen million residents across sixty-seven counties. Pennsylvania has dense urban areas, commuter communities servicing the New York metropolitan area, small towns and vast expanses of rural communities. The virus’ s prevalence varies greatly over the vast diversity of the Commonwealth—as do the resources of the various regions to combat a population proportionate outbreak. Despite this diversity, Defendants’ orders take a one-size fits all approach. The same limits apply in counties with a history of hundreds or thousands of cases as those with only a handful. The statewide approach is broadly, rather than narrowly, tailored.

The imposition of a cap on the number of people that may gather for political, social, cultural, educational and other expressive gatherings, while permitting a larger number for commercial gatherings limited only by a percentage of the occupancy capacity of the facility is not narrowly tailored and does not pass constitutional muster. Moreover, it creates a topsy-turvy world where Plaintiffs are more restricted in areas traditionally protected by the First Amendment than in areas which usually receive far less, if any, protection. This inconsistency has been aptly noted in other COVID-19 cases….

This is a plausible argument, given that the law seems to treat constitutionally protected activity worse than other activity. But I’m far from certain that it will be upheld on appeal, given courts’ general (and likely correct) tendency to give the government considerable latitude in trying to contain the disease while minimizing the economic devastation of the shutdowns.

I also think a stronger argument would have been that the restrictions don’t leave open “ample alternative channels” for expression—a separate prong of the content-neutral restriction test—especially given that the First Amendment singles out peaceable assembly as a separately protected right: other channels would be more expensive, or wouldn’t reach the same audience, or wouldn’t convey the same message. (See City of Ladue v. Gilleo (1994).) I expect the challengers will make that argument on appeal, as they are entitled to do: A judgment can be defended on appeal on any basis fairly presented by the record, including one on which the trial court didn’t rely.

More on the decision in this post on the stay-at-home order and this post on the business shutdown.

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A federal judge on Monday has ruled that lockdown restrictions imposed by Pennsylvania Gov. Tom Wolf (D), including a ban on large gatherings and the closure of “non-life sustaining businesses,” are unconstitutional.

While those restrictions were “well-intentioned,” wrote U.S. District Judge William Stickman IV, “good intentions toward a laudable end are not alone enough to uphold governmental action against a constitutional challenge. Indeed, the greatest threats to our system of constitutional liberties may arise when the ends are laudable and the intent is good—especially in time of emergency.”

In May, Wolf and Pennsylvania Department of Health Secretary Rachel Levine were sued by a coalition of counties, federal and state elected representatives, and several small businesses over the state’s coronavirus restrictions. The restrictions included a shelter-in-place order requiring people to stay in their homes, a closure of all “non-life-sustaining” businesses, and bans on gatherings of more than 25 people indoors, or 250 people for outdoor gatherings.

The plaintiffs collectively argued that the governor’s restrictions on gatherings violated the First Amendment’s protections of free speech and assembly. The shelter-in-place order and closure of businesses, they contended, were a violation of their rights to substantive due process under the 14th Amendment.

Wolf’s lawyers had argued that the restrictions on gatherings and business openings were well within his powers to respond to a public health emergency. He also argued that the lawsuit was moot because the state had since allowed many businesses to resume, including in the counties suing the state. Because emergency orders had only been partially suspended, and not retracted in their entirety, Stickman ruled that plaintiffs were still in their right to challenge them, reports the Philadelphia Inquirer.

In regards to restrictions on gatherings, Stickman ruled that these were not “narrowly tailored” but “rather, they place substantially more burdens on gatherings than needed to achieve their stated purpose” of controlling the transmission of the virus.

The fact that the governor’s orders allow people to visit malls, restaurants, and stores in greater numbers than what the state’s restrictions on gatherings permit showed that the latter were overly broad, Stickman wrote. His opinion also cites comments from Wolf’s chief of staff about how large protests—which the governor attended—didn’t lead to a “super spreader” event as evidence that restrictions on gatherings were overly broad.

Stickman similarly ruled that Wolf’s order closing non-life sustaining businesses was also overly broad and arbitrary, and deprived Pennsylvanians of their right to earn a living under the 14th Amendment. Stickman also wrote that population-wide lockdowns are “such a dramatic inversion of the concept of liberty in a free society as to be nearly presumptively unconstitutional.”

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