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by Creighton Meland (Author)
This discourse addresses legal issues arising from the COVID-19 pandemic and will describe how pandemic litigation has affected the nondelegation doctrine, constitutional rights and statutory interpretation. Unprecedented government measures have led to many cases of first impression and this work will discuss how courts have responded. This study reaches three major conclusions: First, pandemic emergency orders should enjoy no special exemption from nondelegation scrutiny. When the judiciary fails to curb unduly broad, unintelligible delegations, this has real consequences for abuse of executive discretion now on display. Second, in constitutional rights challenges to overreaching pandemic orders, courts have scant modern-day precedent to follow. This study argues that courts should apply rational basis scrutiny to pandemic-related constitutional challenges (not otherwise entitled to strict scrutiny), but only up to a point. In these matters, courts should abandon rational basis scrutiny, and apply intermediate scrutiny, when three conditions exist: 1) data are available to evaluate pandemic emergency measures, 2) there is no identifiable and justifiable end point to the pandemic-related emergency and 3) the pandemic orders affect freedoms commonly recognized as deeply rooted in American history and traditions. Intermediate scrutiny will require the government to affirmatively produce support for pandemic orders that harm or affect large segments of society. The third conclusion finds that some courts have disregarded statutory limits to pandemic emergency powers and will argue against a default setting in favor of the government when more rigorous discernment of statutory meaning is required.
